Vicarious liability in amateur sport: The problem with unincorporated associations

Vicarious liability is a rule of responsibility that holds one party strictly liable for the torts (where someone has committed a wrongful act against or infringement) of another. A typical example in the sporting context is that of a club being held liable for a negligent on-field tackle committed by one of its players.1 As the doctrine of vicarious liability predominantly operates in employment relationships, the general legal orthodoxy appears to suggest that amateur sports clubs cannot be held vicariously liable for the tortious behaviour of their athletes. Amateur athletes lack both the necessary contract of employment and remuneration that is typically evident in a contract of service, and they cannot, therefore, “earn their daily bread as athletes.”2 Of course, it may still be possible to argue that amateur sports participants occupy a position “akin to employees”, but this looks to be an increasingly unlikely outcome in light of Lady Hale’s more restrictive approach to vicarious liability in Barclays Bank v Plc v Various Claimants.3 As such, amateur clubs may justifiably believe that they possess a “de facto immunity” from vicarious liability.4

Beneath this surface of simplicity, however, lies a rather complex and somewhat concerning reality: many amateur sports clubs could be held vicariously liable simply because they are currently operating as an unincorporated association. This article examines this claim, and looks at the following issues:

• The definition of an unincorporated association.
• How the vicarious liability of unincorporated associations has developed in the case law.
• How this category of liability works in practice (and why this may be a problem for members of many recreational sports clubs).
• What can be done – from both a practical and judicial perspective – to help respond to this problem.