Who shoulders the blame? An analysis of vicarious liability in the sports industry

Vicarious liability is a long-standing, common law principle of strict, no fault liability for wrongs committed by another person. It occurs predominantly in employment relationships whereby the employer is held to be liable for the wrongdoing of its employee provided that there is a sufficiently close connection between those wrongs and the employee’s employment¹. Accordingly, these “wrongs” are tortious acts which when committed by a “tortfeasor” (i.e. an employee) will render the employer liable provided that there is a sufficiently close connection between the act and what the employee was employed to do. The fact that the employer itself has not committed any wrong is irrelevant.

Whilst it has been argued that this doctrine is somewhat harsh on employers, its imposition in English law is policy driven on the basis that it is the employers, rather than employees, who have the fiscal means and deep pockets to compensate the losses suffered by an individual following a wrongful act committed by an employee.

In Majrowski v Guy’s and St Thomas NHS Trust² , Lord Nicholls identified that:

“..all forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. This is “fair”, because it means injured persons can look for recompense to a source better placed financially than individual wrongdoing employees³”

Ultimately, it is the employer who is able to spread the losses incurred when making any damages payments, either through its liability insurance, price increases or otherwise⁴. Furthermore, imposing strict liability on employers encourages them to maintain standards of “good practice” by their employees⁵.

Recent developments in the doctrine of vicarious liability following the Supreme Court cases of Mohamud v WM Morrison Supermarkets plc⁶ (“Mohamud”) and Cox v Ministry of Justice⁷ (“Cox”) have however widened the potential liability of employers for the actions of their employees. Accordingly, this article explains the developments and then analyses the potential effects to employers in the sports industry (such as clubs and governing bodies) using some conventional sporting situations and scenarios. Specifically we will look at:

• The development of the vicarious liability doctrine
• The cases of Mohamud and Cox – a shift in the doctrine
• Potential consequences for employers in the sports industry
  • The training ground
  • Sexual misconduct
• What are the limits of a “practical joke”?
• Comment and tips for employers

The development of the doctrine

For vicarious liability to arise, a two-stage test must first be satisfied.

• Firstly, there must be a relationship between the primary wrongdoer and the individual alleged to be liable which is capable of giving rise to vicarious liability⁸. For example, a footballer under contract with a football club will always satisfy the first limb of this test by nature of this employment relationship. Conversely, an independent contractor with no employment contract who is engaged to work in a club’s marketing team for a fixed period is unlikely to fulfil this requirement, provided they undertake the work for which they were engaged to do⁹.
• The second stage of the test is that a connection must exist between the employment and the wrongful act or omission that is so close that the act can be fairly and properly regarded as being within the scope of the employment¹⁰ or that it would be fair and just to impose liability. In Dubai Aluminium Co Ltd v Salaam¹¹, Lord Nicholls noted that the assessment of whether there is a “sufficiently close connection” requires a value judgment. This does not simply entail asking whether it is just and reasonable to impose liability; the issue in hand still requires assessment in terms of the closeness and proximity of the connection. As emphasised in Gravil v Redruth Rugby Football Club Ltd¹², each case must be examined on its own facts in order to truly establish whether the tortious act is so closely connected with the employment that it would be fair to hold the employer vicariously liable¹³. Whilst employers have historically argued that any tortious acts committed whilst an employee was deemed to be on a “frolic of his own” should not render the employer vicariously liable, the effectiveness of such a defence has decreased in recent years with the courts placing a larger emphasis on the creation or material increase of risk attributable to the employer¹⁴.

In establishing such a close connection, it is crucial to ascertain what the employee was actually employed to do or whether it can be said that the act or omission was merely a personal act¹⁵. Acts of passion or resentment¹⁶ or indeed personal spite¹⁷ committed by an employee are unlikely to render an employer vicariously liable. For example, a steward employed by a football club who is working at a football match who assaults a fellow steward during the course of a game out of nothing other than purely personal dislike is not likely to render his employer vicariously liable for his actions. Conversely however, in a similar scenario where a senior steward who has the responsibility of managing a small team instructs one of his team to undertake a task and is then subsequently attacked by the individual he has given instructions to, the employer would likely be vicariously liable for the acts of the disgruntled employee. The vital distinction between these two examples is the personalised element of the assault. In the first example, the assault is based on a personal dislike and has no connection to the employee’s job. In the second, the assault stems from the employee taking instructions in the course of his employment and in doing what he is employed to do.

The cases of Mohamud and Cox – a shift in the doctrine