Friday, February 17th, 2023

C & S v Norman Shaw & Live Active Leisure Limited [2023] CSOH 11

The pursuers in this case, S and C, suffered abuse at the hands of Norman Shaw, the first defender. Live Active Leisure (“LAL”) was, for a period of the abuse, Shaw’s employer. S&C raised proceedings against both Shaw and LAL, seeking damages for the abuse. Shaw did not defend the proceedings and LAL did not dispute that abuse had occurred. Lord Brailsford heard a proof on liability, directed primarily to the issue of whether LAL was vicariously liable for Shaw’s abuse.

The law of vicarious liability has been developing rapidly in light of a number of UKSC decisions. More recently, there has been a stream of decisions emanating from the senior Courts in England and Wales applying those developments, but nothing in the Court of Session.

Lord Brailsford required to consider the two-stage test. There was no doubt that Shaw was, for a period, employed by the defender (stage one); however, the dispute between parties surrounded whether there was a sufficiently close connection between the abuse and his employment (stage two). Lord Brailsford found that any connection was insufficiently close. In particular, he found that “the abuse itself was not perpetrated within the second defender’s field of activities.”

The case is significant as it is the first consideration, in Scotland, of the developing line of authority from the UKSC. Practitioners will wish to note the extent to which the Court required to consider the detail of the relationship between the pursuers and the first defender and between the first and second defenders. It is only in light of all of the relevant facts that the issue of connection can properly be addressed.

Graeme Middleton KC and Andrew Bergin appeared for the Pursuers, Lesley Shand KC and Richard Pugh KC appeared for the Second Defender. A copy of the Opinion can be found here

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