Outer House judge absolves operators of Perth sports centre of liability for sexual abuse of two brothers by caretaker

About this case:

• Citation:
  [2023] CSOH 11
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Brailsford

Pursuers C and S alleged that first defender Norman Shaw, formerly an employee of Live Active Leisure Ltd, had abused them both inside Bell’s Sports Centre in Perth and in the caretaker’s house within the curtilage of the premises. The second defender denied vicarious liability for Mr Shaw’s conduct, for which he was criminally convicted.

The case was heard by Lord Brailsford in the Outer House of the Court of Session. Middleton KC and Bergin, advocate, appeared for the pursuers and Shand KC and Pugh, advocate, for the second defender. No representations were made on behalf of Mr Shaw.

Connection with the family

It was C’s evidence that Mr Shaw abused him on various occasions between 1979 and 1986, when he was aged 3 to 9. His memory was that he was subjected to direct physical abuse and also made to watch pornographic films, with the vast majority of the more serious abuse taking place within the caretaker’s house. He reported the matter to police in 2016 after seeing a news report concerning a football coach who was found to be a paedophile.

The second pursuer S also spoke to abuse by Mr Shaw when he was between the ages of 6 and 10. Mr Shaw pled guilty to a charge of lewd, indecent and libidinous practices and behaviour in respect of S at the family home on various occasions between 14 January 1980 and 13 January 1985. In his own evidence, Mr Shaw accepted he had abused both pursuers but denied any abuse beyond that detailed in the charges for which he was convicted, particularly the abuse of the pursuers within the sports centre itself.

It was submitted for the pursuers that there was clear evidence of abuse in both locations. The first defender’s denial of any abuse within the sports centre was inconsistent with his admission of having abused them in the caretaker’s house. On the basis of that evidence the test for establishing the second defender’s vicarious liability as found in Lister v Hesley Hall Ltd (2002) was met, as there was a sufficient connection between the nature of Mr Shaw’s employment and the abuse perpetrated in the caretaker’s house.

In response, senior counsel for the second defender submitted that the connection element of the Lister test was not met. The abuse had resulted from Mr Shaw’s connection to the pursuers’ family, and it was a matter of admission that he had ingratiated himself with their mother with a view to gaining access to them. The grooming of the pursuers had begun long before they had begun to accompany Mr Shaw while he carried out his duties at the sports centre.

Did not create the risk

In his decision, Lord Brailsford said of vicarious liability generally: “The court must identify what factors or principles point towards or away from vicarious liability. This is necessary to ensure consistency in decision-making. The courts have applied the close connection test differently to sexual abuse cases. It has been tailored to emphasise factors which are particularly important in that context. Such factors have included the conferral of authority on the employee by the employer over the victims he abused.”

He continued: “I am not persuaded that there is any connection between the duties relied on by the pursuers and the sexual abuse. It is not alleged that he sexually abused the pursuers while they assisted him setting up the equipment or accompanied him on security rounds. For vicarious liability to arise, there must be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm. Merely giving the first defender an opportunity to commit the abuse is not sufficient. The duties founded on by the pursuers did not create the risk or significantly enhance it.”

Addressing the defender’s argument that the abuse arose from the relationship between Mr Shaw and the pursuers’ mother, Lord Brailsford said: “I acknowledge that, in principle, it may be possible for vicarious liability to attach even where abuse has commenced at an earlier stage unrelated to the employment but then continues in the context of the abuser’s employment. Such circumstances, however, are hypothetical and do not arise here.”

He concluded: “The fundamental difficulty with the pursuers’ case is that, even if they are correct in submitting that conferral of authority, or the absence thereof, is not determinative, they fail to identify any other connecting factors such that it would be fair and just to impose vicarious liability on the second defender. The nature of the first defender’s job, assessed broadly, did not require him to be in close, private proximity with the pursuers. The risk created was thus insufficient to amount to a connecting factor.”

Lord Brailsford therefore pronounced declarator in favour of the second defenders.