Following our article ‘Vicarious Liability in Irish Law’, we have explored how sports organisations can be held vicariously liable for the acts of employees and other types of worker in English and Welsh law.

Vicarious liability is a significant concern for all sports clubs, who could be held liable to injured athletes or spectators without the club itself actually having committed any negligent acts or omissions.

For specialist legal advice on managing risk and legal claims, please contact Partner (London) and Head of Sports, Imogen.Mitchell-Webb@h-f.co.uk.

The Two-Stage Test

In English law, the test for vicarious liability has two stages:

  • The relationship between the wrongdoer and the organisation must be sufficiently close to justify the organisation being liable.
  • The wrongful act / omission must be sufficiently closely connected with the authorised acts of the wrongdoer that it falls within the ordinary course of the wrongdoer’s employment / work.

Stage 1 will be satisfied if the wrongdoer is employed by the organisation or where there is a relationship ‘akin to employment’. The court will look, for example, at whether the wrongdoer is paid, was appointed and could be terminated from their role and if they were working for the organisation’s benefit.

Stage 2 requires the act / omission to be examined in the context of the relationship. For example, whether it occurred at or close to a workplace, was authorised, what the wrongdoer’s responsibilities were and whether it furthered the organisation’s purpose. As a general rule, even an unauthorised method of committing an authorised act could give rise to vicarious liability.

Impact on Sports Clubs

Sports clubs have been held vicariously liable for negligent acts committed on pitch by employed (i.e. professional or semi-professional) players. In Gravil v Carroll & Redruth RFC Ltd [2008] the club was liable when a semi-pro rugby player punched an opposition player. Despite punching being a clear breach of the relevant rules, altercations and punching were not uncommon in rugby and therefore the act had a sufficiently close connection to the player’s role to give rise to liability for the club.

Whether or not the acts / omissions of an amateur player could lead to the same outcome would depend on whether the relationship between player and club was akin to employment. In many grassroots or amateur sports situations it would not be. As well as whether the act / omission was sufficiently closely connected with their role – a consideration specific to each case.

It is also possible that a sports club could be found vicariously liable for the acts / omissions of, for example a security guard or steward causing injury to a spectator or member of the public.

Non-sports cases have found that employers could also be liable for sexual abuse perpetrated by employees. For example, in Lister [2001] sexual abuse perpetrated by a boarding school warden and in FZO [2020] sexual abuse perpetrated by a PE teacher gave rise to vicarious liability for the relevant schools. Despite sexual abuse being obviously abhorrent, criminal and unauthorised, it was found to be closely connected with the wrongdoers’ authorised roles which involved safeguarding and caring for the victims.

In sporting situations, there can be a similar element of care and asymmetry of power, particularly between coaches and young people, so vicarious liability for clubs could be established, though some recent high-profile abuse cases in sport have failed.

The first of which was Blackpool Football Club Ltd v DSN [2021] where a volunteer coach did not have a relationship akin to employment with the club, and the relevant overseas tour where abuse took place was not sufficiently closely connected with his authorised role. Shortly thereafter in TVZ & Others v Manchester City FC Ltd [2022] a volunteer youth scout and coach was found not to be in a relationship akin to employment with the club, and his actions also fell outside of his role.

Advice for Clubs

It’s important for sports clubs to be aware of the scope of vicarious liability which could give rise to claims.

Key considerations to limit risk and exposure include:

  • All contracted employees and those with a relationship akin to employment should be subject to appropriate and ongoing due diligence
  • Health and safety and safeguarding training should be compulsory for all employees and others carrying out roles for the club
  • The scope of activities carried out by employees and non-employees, and how they’re carried out, should be carefully monitored
  • Robust safeguarding processes and procedures should be implemented and enforced
  • Supplementary processes such as whistleblowing and investigation procedures should be equally robust and accessible
  • Keep appropriate records in respect of all employees and others carrying out roles for the club, including training records

For further advice about the potential impact of vicarious liability on sports clubs, and any support for legal defence or risk management, please contact Imogen Mitchell-Webb, Partner (London) and Head of Sports, Imogen.Mitchell-Webb@h-f.co.uk.