RECLAIMING MOTIONS BY C & S AGAINST NORMAN SHAW AND LIVE ACTIVE LEISURE [2023] ScotCS CSIH_36 (13 October 2023)

RECLAIMING MOTIONS BY C & S AGAINST NORMAN SHAW AND LIVE ACTIVE LEISURE [2023] ScotCS CSIH_36 (13 October 2023)

The evidence established that the employee's authority over the victims and opportunity to abuse them derived from his relationship with their mother, not from his employment or duties as Head Caretaker. The contractual requirement to reside in the caretaker's house and the occurrence of abuse there cannot be assessed in isolation from the whole circumstances, which point away from attaching vicarious liability. The conduct was not so closely connected with authorised acts that it could fairly and properly be regarded as done in the course of employment. The risk of abuse was not created or significantly enhanced by the employer's authorisation.

Citation
[2023] ScotCS CSIH_36
Parties
Pursuers and Reclaimers: C & S; First Defender: Norman Shaw; Second Defenders and Respondents: Live Active Leisure
Jurisdiction
Scotland
Judgment Date
13 October 2023
Procedural Posture
Reclaiming Motion (appeal) / Inner House, Court of Session, Second Division
Outcome
Reclaiming motions refused
Legal Topics
Vicarious Liability, Sexual Abuse, Employer Liability
Tort Employment Law Vicarious Liability Sexual Abuse Employer Liability

Case Brief

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Parties

C & S

Pursuers and Reclaimers

Norman Shaw

First Defender

Live Active Leisure

Second Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) / Inner House, Court of Session, Second Division

Legal Issues

  1. 1 Whether employer should be held vicariously liable for sexual abuse perpetrated by employee
  2. 2 Whether there was a sufficiently close connection between employment and abusive acts

Ratio Decidendi

The evidence established that the employee's authority over the victims and opportunity to abuse them derived from his relationship with their mother, not from his employment or duties as Head Caretaker. The contractual requirement to reside in the caretaker's house and the occurrence of abuse there cannot be assessed in isolation from the whole circumstances, which point away from attaching vicarious liability. The conduct was not so closely connected with authorised acts that it could fairly and properly be regarded as done in the course of employment. The risk of abuse was not created or significantly enhanced by the employer's authorisation.

Court Disposition

Reclaiming motions refused