C&S AGAINST NORMAN SHAW AND LIVE ACTIVE LEISURE LTD [2023] ScotCS CSOH_11 (14 February 2023)

C&S AGAINST NORMAN SHAW AND LIVE ACTIVE LEISURE LTD [2023] ScotCS CSOH_11 (14 February 2023)

The court found that while Shaw was liable for the abuse, the connection between his employment and the abuse was insufficient to impose vicarious liability on the second defender. The abuse originated from Shaw's relationship with the pursuers' family, not from his employment duties. The employment did not create or significantly enhance the risk of abuse, nor did it confer authority or proximity sufficient to meet the close connection test. The abuse was perpetrated in a private capacity, and the employer's field of activities was not implicated. Therefore, vicarious liability was not established against the second defender.

Citation
[2023] ScotCS CSOH_11
Parties
Pursuers: C & S; First Defender: Norman Shaw; Second Defender: Live Active Leisure Limited
Jurisdiction
Scotland
Judgment Date
14 February 2023
Procedural Posture
Civil Personal Injury / Abuse / Proof Limited to Liability
Outcome
Decree of absolvitor in favour of the second defenders; decree in absence against the first defender for liability.
Legal Topics
Vicarious Liability, Sexual Abuse, Employer Liability, Personal Injury
Tort Employment Law Vicarious Liability Sexual Abuse Employer Liability Personal Injury

Case Brief

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Parties

C & S

Pursuers

Norman Shaw

First Defender

Live Active Leisure Limited

Second Defender

Procedural Posture

Civil Personal Injury / Abuse / Proof Limited to Liability

Legal Issues

  1. 1 Whether Norman Shaw is liable to make reparation for sexual abuse perpetrated on the pursuers
  2. 2 Whether Live Active Leisure Limited is vicariously liable for the abuse committed by Shaw in the caretaker's house and sports centre

Ratio Decidendi

The court found that while Shaw was liable for the abuse, the connection between his employment and the abuse was insufficient to impose vicarious liability on the second defender. The abuse originated from Shaw's relationship with the pursuers' family, not from his employment duties. The employment did not create or significantly enhance the risk of abuse, nor did it confer authority or proximity sufficient to meet the close connection test. The abuse was perpetrated in a private capacity, and the employer's field of activities was not implicated. Therefore, vicarious liability was not established against the second defender.

Court Disposition

Decree of absolvitor in favour of the second defenders; decree in absence against the first defender for liability.

Orders

  • Decree in absence against Norman Shaw, finding him liable to make reparation to the pursuers for abuse perpetrated upon them.
  • Decree of absolvitor in favour of Live Active Leisure Limited, dismissing the claim for vicarious liability.