Since 2001, there has been what the Supreme Court has described as a 'redrawing of the boundaries' in relation to when vicarious liability will be established. Here, we review the latest opinion from Scotland's highest civil appeal court and consider what it means for the 'close connection test'.

C & S v Shaw and Live Active Leisure [2023] CSIH 36

The pursuers and reclaimers in this case had been sexually abused by the first defender, between 1979 and 1986. The abuse had started in the reclaimers' family home, the first defender having become friends with their mother, but the most serious episodes occurred between 1983 and 1986. During this time, the first defender was employed by the second defenders as Head Caretaker of their sports centre, and this most serious abuse occurred within the home which the first defender occupied under his contract of employment.

The reclaimers argued that the second defenders were vicariously liable for the abuse which had occurred within the tied home. The fact of the abuse was not in dispute, the first defender having already been convicted following a criminal trial. The issue was whether there was a 'sufficiently close connection' between the abusive acts and what the first defender, as an employee of the second defenders, was authorised to do. If there was, the second defenders would be held vicariously liable for the acts of their employee.

The judge at first instance held this connection did not exist, and the appeal court agreed. The court accepted that the duties and responsibilities of the first defender were, principally, to set out sports equipment, to complete security rounds, and to enforce the rules. These duties did not place the first defender in close isolated contact with children. Nor did his job description require him to form relationships with them, place him in a position of authority over them, or require children to attend at his home. Accordingly, the first defender's employment did not create or enhance the risk that abuse might occur. Rather, the episodes were further instances of abuse which had commenced when the first defender had befriended the reclaimers' mother, and which had progressed before the first defender's employment had begun.

The decision made reaffirms that a superficial link between employment and a person's wrongful conduct – a mere connection in time or place – will not be enough to satisfy the close connection test. The outcome is, however, likely to be different where employment places the individual in proximity to the victim or in a relationship of power or dependency over them.

Contributors

Laura McMillan

Partner & Director of Advocacy

Kate Donachie

Legal Director

Lynn Livesey

Legal Director

Gemma Nicholson

Senior Associate