The courts continue to wrestle with the application of the complex and constantly developing principles of vicarious liability to a variety of cases from the world of sport. Alastair Gillespie summarises the current state of play.

Readers will be aware of numerous recent high-profile controversies in several sports both in the UK and across the globe relating to allegations of physical, sexual and psychological abuse, bullying, harassment and other types of assault.

Many of these controversies have only recently come to light. It remains to be seen whether they will develop into criminal charges and/or independent investigations or, indeed, civil claims for compensation. Similar harrowing accounts of trauma suffered within other sports, most notably professional football, are much more advanced, to the extent that several trials and appeals of football-related claims have now taken place. Although those cases concern events occurring in the context of football coaches, scouts and players, it will readily be seen that the decisions in those cases will be equally applicable in many other sports. Even then, however, cases involving questions of civil liability for abusive acts will always turn on their own facts to a greater or lesser degree. The task of predicting the outcome in an abuse case can often be a challenging one notwithstanding the precedents that the Court of Appeal and the High Court are now setting.

The complications involved in these cases rarely arise from the fact of abuse. Often, the allegations of abuse quite properly go unchallenged. Unless there is a positive case to advance on the evidence, the abuse should be accepted. If the fact of abuse is all that a court had to determine, and the abuser is the defendant and has the finances to meet a judgment, the process is very straightforward. Where matters become confusing, however, is when it is the organisation that is sued. Then, the court has to decide first whether the abuser was an employee or akin to an employee and, secondly, whether abuse occurred in a context sufficiently proximate to that employer/employee relationship. Those two questions are fraught with difficulty.

The position is exacerbated because these cases do not make for easy reading. The overwhelming majority of claimants in these cases were abused as they allege. Many have endured a criminal trial in order that their abuser is then convicted and, invariably, jailed. The abuser has often pleaded not guilty and forced their victims to suffer the trauma of reliving events and attacks upon their honesty and integrity. Any right-minded person will have nothing but sympathy for victims and survivors who have been forced to undergo that ordeal. All of that having been said, judges must put the emotive nature of these claims to one side. As Johnson J said in his recent judgment in TVZ & Others v Manchester City Football Club plc [2022] EWHC 7:

“It is not open to a court to impose vicarious liability on the basis of an intuitive feeling for where the justice of a case lies. Rather, it is necessary to apply the tightly controlled tests set down in the authorities…”

The judge is right in referring to tightly controlled tests, which have been undergoing considerable analysis and refinement by the courts over the last 20 years. However, although the tests have been refined, the application of those tests to different scenarios is a much more unpredictable exercise. As matters stand, for example, football scouts have been regarded by the courts as independent contractors for whose actions the sued organisation cannot have vicarious liability. But in every case involving a so-called scout, care must be taken to examine the specific nexus between the scout and the organisation, because certain relationships, that may for example involve activities at the direction of the organisation involving the payment of a retainer and/or a bonus, could mean that the scout is, in reality, operating in the same way and within the same framework as an employee.

It would make life much easier if we could affirm that both the vicarious liability legal test, and the application of that test, were finally resolved. Hopefully, the former is now settled. But as long as cases continue to be fact-sensitive, courts, lawyers and their clients will continue to be troubled by different scenarios.