Where a first-team goalkeeper assaults a youth trainee in the changing rooms at a football club, it may have been thought that the club would be vicariously liable for the goalkeeper’s actions. In the recent case of GB v Stoke City Football Club & Peter Fox  EWHC 2862, the court held that this was not the case. This contrasts with the approach courts have taken to vicarious liability in the historic abuse setting.
Peter Fox was the first team goalkeeper for Stoke City in the 1980s. He achieved a somewhat legendary status over his 447 appearances and went by the nickname Fantastic Mr Fox. The claimant, a youth trainee, alleged that he had been assaulted by Mr Fox, from which he developed PTSD. The alleged assault involved penetration of his anus by Mr Fox using a gloved finger smeared in a Deep Heat-like substance.
This claim failed as the claimant did not prove that the assaults happened. As such, there was no need for the court to consider the club’s vicarious liability. However, Judge Butler proceeded to do so, and his comments are interesting.
Proceeding on the hypothesis that Mr Fox’s actions were proven, the question was whether the court was satisfied that these actions were so closely connected with his employment that it would be fair and just to hold the employer vicariously liable. Judge Butler held that they were not.
Mr Fox had no express or implied power, duty or discretion conferred upon him by the club to train, discipline or chastise the apprentices. At the time of the alleged assaults, Mr Fox was neither training nor playing in goal - he was merely in the changing rooms.
The claimant submitted that the club operated a system whereby the trainees were required to perform menial duties for the professional players, and that this system created or enhanced the risk of the professionals delivering some form of punishment.
Judge Butler commented that to hold the club vicariously liable would extend the boundaries of vicarious liability significantly and unjustifiably. To do so would be “little short of holding that any employer should be vicariously liable for any assault on any apprentice or trainee by a full-time employee in all the circumstances.”
This finding contrasts with the approach taken by courts towards vicarious liability in historic abuse cases. Liability has been established where the employee’s actions were outside the scope of employment but displayed some connection to it - and even where the abuser was not an employee. The Scout Association may be wondering why they were vicariously liable for their chaplain in JL v Bowen but not so Stoke for their goalkeeper.
While Mr Fox was not employed to be in the changing room, it is an inevitable part of the life of any footballer. One may have thought that this was a sufficiently close connection for the club to be found vicariously liable, but apparently not.