GB -v- Stoke City Football Club Limited (1) Peter David Fox (2)
Hill Dickinson LLP has been acting for Stoke City Football Club and its insurers in a high-profile case of historical assault involving former professional players and apprentices. Today (30 October 2015), the High Court has handed down its judgment. Alastair Gillespie, partner and head of abuse and social care at Hill Dickinson, considers this case which has ramifications for the issue of vicarious liability in personal injury claims generally.
The claimant, an apprentice at Stoke City (‘the club’) from 1986-1988, alleged that he was assaulted on two occasions by Peter Fox, the first team goalkeeper, through a practice known as ‘gloving’. This alleged punishment was said to have involved Mr Fox coating the finger of a goalkeeping glove in Deep Heat (or a similar ointment) and inserting it into the claimant’s backside whilst he was restrained by other professionals.
The claimant said he was punished for:
- making a bad call when acting as a linesman in a practice match; and
- not making the tea hot enough following a training session.
The claimant alleged that as a result of these serious intimate (but not sexualised) assaults, not only did he suffer physical and psychiatric injury, but he also lost the chance of a career in professional football.
He alleged that:
- Mr Fox was directly liable for the assaults; and
- The club was vicariously liable as Mr Fox’s employer.
At a limitation trial in December 2013 the claim was allowed to continue notwithstanding the delay of over 20 years, although permission to pursue an additional negligence claim against the club was refused.
The substantive trial has now taken place and judgment was handed down today.
Mr Fox denied that the assaults had occurred. The club argued that even if the assaults had happened, they were not so closely connected to Mr Fox’s employment that it would be fair and just to hold it vicariously liable.
The court therefore had to decide:
- Whether the assaults described by the claimant had occurred;
- If so, whether the club was vicariously liable; and
- What injury or loss was suffered as a result of any proven assault(s)?
The judge dismissed the assault allegations. His judgment reflects the difficulties inherent in assessing evidence of events alleged to have occurred almost 30 years before.
Although he did not rule that the claimant had been dishonest, the judge could not be satisfied on the balance of probabilities that the specific events had occurred. This was not a positive finding that no assaults had taken place. The judge expressed misgivings that ‘some sort of prank may be at the root of this case’. But the claimant’s evidence and that of several of the former apprentices (who had already had dealings with the press in relation to their own allegations) had contained so much inconsistency, contradiction, confusion and unreliability that, in the face of consistent denials by Mr Fox and his witnesses, the claim failed.
Having dismissed the factual allegations it was not necessary for the judge to deal with vicarious liability. However, he did do so, albeit on an obiter basis. It is these comments that could have ramifications for future cases. The judge stated that even if the assaults had occurred he would not have held the club vicariously liable for them.
In so finding, the key question was whether assaults like these would have been so closely connected with the alleged perpetrator’s employment that it would be fair and just to hold the club vicariously liable.
The claimant argued that as the club was in the business of association football, and the apprentices interacted with the professionals in the course of carrying out their duties, vicarious liability should apply. The club had created the inherent risk that in a hierarchical situation the professionals would punish apprentices for a failure to do their jobs properly. Apprentices and professionals regularly mixed, and the way the club operated its business led positively to the circumstances in which the claimant alleged he had been assaulted.
Countering this, the club argued not only that there was no sufficiently close connection between the employment and the assaults, but also that to find for the claimant the court would have to widen the doctrine of vicarious liability beyond the current law. In particular:
- The club did not confer any express or implied contractual authority on the professional players to train, discipline or chastise apprentices. The apprentices carried out tasks at the direction of the youth team coach and, whilst apprentices looked upon the professionals as role models, this did not mean that the club had conferred power over them to the professionals; and
- The club did not create or enhance the risk of the sort of behaviour alleged by the claimant. Human interaction always carried the risk of friction or confrontation between different classes of employee, but that was no different from any other workplace: if Mr Fox did assault the claimant, that was an independent venture unrelated to his employment amounting to a frolic or, at worst, a personal act of vengeance or spite.
Rejecting the notion of vicarious liability in this case, the judge concluded that:
- If vicarious liability did apply that would mean that most if not all apprentices or trainees in all workplaces, not just sporting organisations, would be at theoretical risk. Any such finding would fall 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 circumstances; and
- It was found as a fact that the club had no knowledge of the alleged practice of ‘gloving’. In the absence of either knowledge or any conferring by the club of express or implied powers to the professionals in relation to the apprentices, the alleged assaults would have fallen so far outside the course of Mr Fox’s employment that it would not be fair or just to impose vicarious liability on the club as his employer.
Whilst not binding on the higher courts, this judgment is nonetheless a welcome development for employers and their insurers.
Over the last 15 years vicarious liability has come to be regarded as a strict liability concept, the scope and application of which has been continually and considerably extended. Alongside the recent cases of Mohamud -v- WM Morrison Supermarkets, Weddell -v- Barchester Healthcare and Graham -v- Commercial, this is another welcome decision demonstrating that the courts will adopt a more robust approach to this crucially important liability principle.
A finding of vicarious liability in the circumstances of this case could have affected not only sporting clubs but, in theory, any hierarchical organisation. It would have represented an extension of the doctrine of vicarious liability and encouraged further claims.
The fact that this type of historical claim generally attracts the court’s discretion on limitation means that legacy insurers could also have faced significant unexpected liabilities on numerous risks.
This judgment does not preclude the possibility of individuals pursuing professionals directly in similar cases nor, specifically, does it represent any finding as to the existence of, or liability for, initiation rituals that might have taken place within sporting clubs and been subject to publicity in the intervening years. However, there is no doubt that the difficulties that the judge encountered in this case in having to assess evidence relating to events dating back almost 30 years provide very persuasive reasons for refusing, on limitation grounds, to allow future claims to proceed.
The next development in this area, the Supreme Court decision in the cases of Mohamud and Cox -v- MoD, is now awaited with interest.