C & S v Norman Shaw and Live Active Leisure Ltd

Background

The case of C & S v Norman Shaw and Live Active Leisure Ltd [2023] CSIH 36 concerned the abuse of two boys between 1979 and 1986. The abuse began in the children’s family home following the abuser, Shaw, befriending their mother.

The boys were further abused at Shaw’s employer’s premises, within the house he occupied by virtue of his employment as a caretaker of the second defender’s leisure centre and in the centre itself. The claimants argued that the employer was vicariously liable for Shaw’s actions in his abuse of the two children.

There was no dispute that the abuse took place from 1979, nor that the children were abused within their family home and within Shaw’s house. Shaw was a known paedophile and the claimants benefitted from relevant convictions.

Shaw became employed as a caretaker at a sports centre with the second defender around 1983 to 1987, approximately four years after the abuse had commenced. He resided in the caretaker’s house, which was provided through his employment.

Decision at first instance 

In February this year, the issue for trial was whether in the circumstances the abuse was sufficiently closely connected to Shaw’s employment that it was fair, just and reasonable to find the employer vicariously liable for the abuse.

The Outer House of the Court of Session strictly applied the doctrine of vicarious liability, and specifically, the two-stage test set out by Lister & Ors v Hesley Hall Ltd to conclude that the claimants failed the “close connection” test with regard to the employer’s vicarious liability for the abuse perpetrated by Shaw.

The Lord Ordinary found (1) the caretaker had been in a relationship of employment with the second defender, but (2) there was no sufficiently close connection between the abusive acts and the caretaker’s authorised duties under that employment. Accordingly, it was not fair and just to find the employer vicariously liable for the abuse perpetrated by the employee.

Appeal

The claimants appealed. Their statement of the applicable law was not disputed, but their arguments went to the Lord Ordinary’s failure to give correct weight to the evidence heard and to apply the facts of the case properly to the law.

In particular, they argued that the Lord Ordinary ought to have found there was a sufficiently close connection between the duties of Shaw in the course of his employment and the abuse he perpetrated.

On appeal, the main arguments were:

1. The Lord Ordinary had noted that Shaw’s specific duties and responsibilities of employment as Head Caretaker were: (i) the setting out/dismantling of sports equipment; (ii) his security duties, including carrying out rounds; and (iii) the duty requiring him to enforce the rules. The Lord Ordinary had ignored the contractual duty under Shaw’s terms of employment to reside in the house on the second defender’s premises “for the better performance of his duties”. The appellants argued this was a key element in the close connection test, as to reside in the caretaker’s house was a duty of Shaw’s employment and that is where the most serious abuse took place.
2. The Lord Ordinary had failed to take into account the unchallenged evidence that the abuse which was perpetrated by Shaw in the family home had been “low level” and “opportunistic” whereas the abuse which took place in the caretaker’s house was “much higher level” and “much more serious”. The abuse in the family home, they argued, fell to be treated simply as background (akin to the way the friendship between the claimant and abuser in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses had been treated). The fact that previous abuse had occurred should not destroy the subsequent close connection between the more serious abuse and the capacity in which Shaw resided in the house.
3. Had the Lord Ordinary properly considered the evidence, he would have recognised that prior interactions between the children and Shaw which occurred within the sports centre formed part of the progressive and abusive process. It was Shaw’s employment which gave him “the status and opportunity to draw [the appellants] into his sexually abusive orbit by ostensibly respectable means connected with his employment”. If the Lord Ordinary had considered this fully when he was considering the close connection test, he would have appreciated the relevance of this as evidence of grooming.

Appeal refused 

On the evidence the Lord Ordinary had heard, the Inner House was satisfied he was entitled to conclude that there was no sufficiently close connection between Shaw’s employment with the local authority and the abuse perpetrated to hold the employer vicariously liable for the abuse. They upheld the Outer House’s decision.

It was considered that for vicarious liability to arise, there had to be a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm (Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church). The Head Caretaker’s duties did not place Shaw within proximity of the children, either in the caretaker’s house or in the leisure centre. The risk of abuse arising within the caretaker’s house was created by the children’s mother’s relationship with Shaw.

The “progressive stages of intimacy” (Maga) – i.e. the grooming – took place as a result of their mother’s relationship with Shaw, and in the family home, and began quite some time prior to Shaw commencing employment with the second defender. The Lord Ordinary was entitled to look at the evidence in its entirety: the occurrence of abuse in the caretaker’s house which was more serious than that which had occurred previously in the family home could not be assessed in isolation from the reason Shaw came to know the appellants in the first place.

The appellants were brought into the caretaker’s “sexually abusive orbit” by their mother – the relationship she established with him gave him the contact with the children, the authority over them, and the opportunity to abuse them – not his role as caretaker of the leisure centre. The risk of Shaw sexually abusing the children was not significantly enhanced by what the second defenders had authorised him to do within the course of his employment. He did not have specific authority over children as a part of his caretaker duties, and any special responsibility he did have over them was created by their mother essentially placing the boys in his care.

Comment

In a welcome reinforcement of the Outer House decision, the second stage of the Lister test was affirmed. When determining whether there was a sufficiently close connection between the nature of employment and the abuse in terms of that second stage test, it was asserted that the circumstances which could present themselves were of such infinite variety that there could be no one test. No one list of factors would always be relevant. The facts of each case require to be considered in order to determine whether there is a sufficiently close connection.

For more information, please contact:

Stephanie Papa – Solicitor

Email: SPapa@keoghs.co.uk