Wednesday, October 25th, 2023
C&S v Norman Shaw & Live Active Leisure [2023] CSIH 36
Lesley Shand KC and Richard Pugh KC successfully represented the second defender, Live Active Leisure, in a Reclaiming Motion in this historic child abuse case. The first defender, an individual, perpetrated abuse upon the pursuers in the late 1970s and early 1980s. He is currently serving a prison sentence in HMP Perth. Live Active employed the first defender as a Caretaker in one of its sports centres for the later part of the period of abuse. The issue to be determined by the court was whether the there is a significantly close connection between the first defender’s employment and the abusive acts, to find the second defender vicariously liable.
The Lord Ordinary found for the second defender at proof on the basis that there was not a sufficiently close connection. The pursuers reclaimed. The reclaimers, represented by Graeme Middleton KC and Andrew Bergin, argued before the Inner House that the first defender’s field of activities in his employment put him, via his occupation of a tied house, in the vicinity of the reclaimers – creating a significant risk that abuse would occur. The respondents however argued that the first defender’s job did not place him in contact with the reclaimers and that his occupation of the tied house was not sufficient to create a connection. It was not the respondent’s operation that had put the reclaimers into the first defender’s orbit. Instead, it was the first defender’s relationship with the reclaimer’s family (outwith his employment) that created the opportunity for the abuse to occur.
The Second Division of the Inner House refused the reclaiming motion and adhered to the decision of the Lord Ordinary. In doing so, the Court addressed the recently developing line of authority culminating in the decision of the UKSC in BXB v The Trustees of Barry Jehovah’s Witnesses.
A copy of the full judgment can be found here.