VICARIOUS LIABILITY: FOOTBALLERS, ASSAULT AND “INITIATION CEREMONIES”

It is well known that last month the Supreme Court heard a number of appeals in relation to vicarious liability, particularly for assaults by employees.  While the decisions are pending it is useful to look at examples where these issues are being applied using the current law.  The issue of vicarious liability for an “initiation ceremony” which involved intimate touching was considered by His Honour Judge Butler  (sitting as a High Court judge) in GB -v- Stoke City Football Club Ltd [2015] EWHC 2862 (QB).

THE CASE

The claimant alleged that he had been assaulted whilst working as an apprentice footballer between 1986 – 88 when aged 16 – 17. On two occasions he had been subject to an assault (of a non-sexual nature) involving the use of a goalkeeper’s glove in an intimate area.  The evidential issues that had arose are considered in detail here. 

  • The alleged assailant had no direct responsibility for the supervision or discipline of the claimant.
  • There was not sufficiently close connection between the role of the alleged assailant with the defendant, the assault and the claimant to justify imposing vicarious liability.

THE VICARIOUS LIABILITY ISSUE

The claimant had obtained permission to proceed under s.33 of the Limitation Act in relation to the allegations of assault and vicarious liability for the alleged assault.  However permission was not given in relation to a an action directly against the football club.  The judge found that the claimant had not established that the assaults happened. However he considered issues of vicarious liability in any event.

THE JUDGMENT ON VICARIOUS LIABILITY

Additional remarks (vicarious liability)
    1. It follows that it is, strictly, unnecessary to consider the merits of the claim against the first defendant, which is dependent upon the claimant succeeding in his claim against the second defendant. However, in deference to the detailed and interesting submissions of Mr Fewtrell and Ms Weereratne QC, and in case the case should go any further, I propose to deal fully with the vicarious liability issue, set out as issue (3) in paragraph 28 above.
    2. In the course of my previous judgment (paragraphs 43 to 45) I dealt with the current state of the law on this issue, so far as was necessary for the purposes of deciding the preliminary issue of limitation and on the basis of the authorities cited to me at that time. The leading cases are still Lister v Hesley Hall [2002] 1 AC 215 (HL) and Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1. At its most basic the question is whether the court is satisfied that any tortious act of an employee which has been proved by the claimant was “so closely connected with his employment that it would be fair and just to hold the employer vicariously liable“. The burden of proof is on the claimant to prove that the acts of the second defendant, if proved, were so closely connected with his employment that it would be fair and just to hold the club vicariously liable for them. If so, the club will not be held liable for any culpable act or omission on its own part. Rather, it will be held answerable in law for the fault of the employee even though the club itself, as employer, is not (by any official or management staff) at fault. In my previous judgment, I summarised the position as set out in Munkman on Employer’s Liability, 16th edition 2013, paragraph 4.89, citing the decision of the Supreme Court in the Various Claimants. This decision applies to vicarious liability generally and for the avoidance of doubt I find there to be no distinction between vicarious liability for child sexual abuse (specifically in issue in that case) and the vicarious liability for serious intimate physical assault (specifically in issue in the present case). The law is as stated by Lord Phillips at paragraphs [86]-[87]:
Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim … would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link … [C]reation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.“.
    1. Having regard to the fact that the club concedes that the relationship of employer and employee is capable of giving rise to vicarious liability, the dispute between the parties is whether there is a sufficient closeness of connection between (a) that relationship and (b) the alleged assaults. That dispute arises from the application of the second stage of the test (see paragraph 28 above). Mr Fewtrell’s general submission on behalf of the club is that even if the second defendant did assault the claimant in the manner alleged on either or both occasions, those assaults were not so closely connected with his employment that it would be fair and just to hold the club vicariously liable because such acts could not fairly and properly be regarded as being done by the second defendant whilst acting in the ordinary course of the club’s business or his employment. Mr Fewtrell effectively adopted the phraseology used by Lord Nicholls in Dubai Aluminium v Salaam [2003] 2 AC 366, a case decided after Lister but beforeVarious Claimants.
    2. More specifically, Mr Fewtrell’s submission for the club was that the alleged assaults cannot fairly and properly be regarded as being closely connected with the second defendant’s employment because the club did not create or enhance the risk of that kind of behaviour occurring to the claimant or any other apprentice. Reliance was placed on the fact that (as he invited me to find) the club conferred no special authority on the professional players. The apprentices looked up to them as role models but this did not amount to the conferring of a power over them. I would have found as a fact that the second defendant had no contractual authority to train or chastise apprentices, the tasks of the apprentices being done on the instructions of the club (acting by Mr Lacey) not of the professional players, there being no express term to that effect in the second defendant’s contract (2, A251).
    3. Mr Fewtrell submitted that such assaults could not in any way be said to be a means of advancing the club’s interests or business, improperly or at all. The risk of friction or confrontation between different classes of employee is a feature of human interaction but was, he submitted, no more inherent in the club’s business conducted at the Victoria Football Ground than in any other workplace and in that context the second defendant’s conduct, if proved, was an unrelated and independent venture of his own (albeit in company with other employees of the club) and constituted at best a ‘frolic’ or at worst a ‘personal act of vengeance or spite’ for a perceived slight. His concluding argument was that it should be held that, even as the law has now developed, these actions fall outside the admittedly wider range of employer’s liability for employee’s actions.
    4. In Wilson v Exel UK Limited [2010] CSIH 35 the Scottish Court of Session decided that it is not enough to bring home vicarious liability that the acts were committed in the employer’s premises during the hours of work, the mere opportunity to commit them having been provided by the fact of employment, where the employee’s behaviour was an unrelated and independent venture of his own, that is to say a personal matter, rather than a matter connected to his authorised duties. The club adopts this decision and I am asked to follow it.
    5. I find that, on the evidence before me, the second defendant, even as the player designated as club captain, had no express or implied power or duty or discretion conferred upon him by the club to train, discipline or chastise the apprentices. His duties were to train with the first team, to play in goal for the first team (and for the reserve team if so required) and perhaps to act as president of the youth fan club (‘The Junior Potters’). Although the contrary appeared to be pleaded against the club, I accept the unchallenged evidence of Mr Mills and Mr Lacey on this point. Thus, on the authorities, if the second defendant had been accused of assaulting a youth supporter in the course of performing the latter role the club would probably have been vicariously liable if the assault were to be proved. But that is not the case. At the time of the alleged assaults, the second defendant was neither training, nor playing in goal nor acting as the fan club president. Similarly, if the claimant’s allegations had been made against Mr Lacey, who had been given direct authority over the apprentices and duties in relation to them including disciplinary powers, then the club would probably have been vicariously liable if the allegations were to be proved. Again, that is not the case.
    6. Mr Fewtrell relied on the case of Mohamud v W M Morrisons Supermarkets PLC [2014] EWCA Civ 116, a decision of the Court of Appeal subsequent to the Various Claimants’ case in which a violent unprovoked attack by a petrol station attendant employed by the defendant was held not to give rise to vicarious liability. Treacy LJ said at [46] that:
“… [T]he mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient … [S]ome factor or feature going beyond interaction between the employee and the victim is required … such as the granting of authority, the furtherance of an employer’s aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring“.
    1. Each case must be decided on its own facts. Mohamud can of course be distinguished on its facts because the relevant employee did not attack another employee (or trainee) but a member of the public. However, in my judgment it is the connection between the act of the wrongdoer employee and the relationship between the wrongdoer employee and the employer which matters, rather than the status of the alleged victim. The authorities do not appear to me to draw any distinction relevant in law between victims who are fellow employees (whether senior or junior) or customers or persons for whose care the employer was responsible (for example children in care homes) or strangers. Two contrasting reported cases are illustrative. In Wallbank v Wallbank Fox Designs Limited [2012] EWCA Civ 25, a junior employee assaulted a factory manager in response to an instruction and the employer of both was held vicariously liable because of the possibility of friction inherent in any workplace where instant instructions and quick reactions are required and the risk of an “over-robust” reaction was held to have been a risk created in the particular factual scenario in that case. On the other hand vicarious liability was not accepted in a case decided on the same occasion by the same court, namely Weddell v Barchester Healthcare Limited [2012] EWCA Civ 25, in which one employee called another employee at home and asked him to do a voluntary shift. When the other refused but came to the workplace to assault the maker of the request the employer was held not to be liable.
    2. I confess that I find it hard to discern a relevant distinction between those two contrasting cases other than the speed of reaction and that in the former everything happened on the work premises but in Mohamud (at paragraph [35]) the two appear to have been reconciled by deciding that the cases in which an injured employee assaulted by another employee was successful the wrongdoer had been “given duties involving the clear possibility of confrontation” whereas in those cases in which the injured employee so assaulted failed no such duties had been given to the wrongdoer or such duties as had been given to the wrongdoer were circumscribed. This appears to me to be consistent with the non-inclusive list of factors identified in the Canadian case of Bazley v Curry (1999) 174 DLR (4th Ed) 45 the approach of McLachlin J in which was followed or adopted in Lister. Those factors included, at paragraph 41(3) of her judgment, the fact of the giving of power by the employer to the wrongdoer, the extent of the power conferred on the wrongdoer in relation to the victim and the extent to which the employer’s business afforded the wrongdoer the opportunity to abuse that power.
    3. In the most recent Court of Appeal authority on this issue, Graham v Commercial [2015] EWCA Civ 47, the facts were that a person described as a “co-employee” with no apparent distinction in status between the wrongdoer and the victim, had used a cigarette lighter in the vicinity of the victim whose overalls had been sprinkled with a thinning agent and a fire started which caused serious injury. This was described by the trial judge as a “deliberate and clearly reckless” act and by Longmore LJ as “frolicsome but reckless”. The claimant failed at trial and on appeal. The wrongdoer’s conduct was held to be similar to that of the wrongdoer in Wilson. The case fell into the category of cases in which it is inappropriate to impose vicarious liability.
    4. None of the cases seem to me to place the focus on the duties given by the employer to the victim, but Miss Weereratne QC would in effect be driven by the fact (as I find) that no duties were given to the second defendant in relation to the apprentices in general or the claimant in particular to submit that it was the duties given to the apprentices (to the victim) which created or enhanced the risk of confrontation with first team players or of violence, whether frolicsome or vengeful or however else described, being done to them by first team players. She submitted that it would not matter whether the victim was an apprentice, another employee or a supporter. Her general submission was that the status of the victim is irrelevant and that, as she put it “a victim is a victim“. I accept that submission so far as it goes but the context of the assault on the apprentice, the employee or the supporter is important for the satisfaction of the “close connection” test.
    5. More specifically, taking her written opening and her closing oral submissions on behalf of the claimant as a whole Ms Weereratne QC argued that the club is a business, its business being association football and, whether or not there was a formal contractual obligation or requirement upon the professionals to train or chastise apprentices, the first team players and the apprentices nevertheless interacted in a strict hierarchical manner, the apprentices’ duties including the performance of menial duties for the first team players (cleaning boots, putting out clean kit, preparing refreshments) which were imposed on them by the club requiring them to enter the first team players’ dressing room from time to time.
    6. Ms Weereratne QC also relied on the fact that the apprentices were also engaged on occasions in playing competitive minor league matches against other clubs, or practice matches among themselves, when the teams consisted of a mixture of first team players and apprentices, albeit that the question of how often if ever apprentices ever acted as linesmen was in dispute. In so far as it may be necessary, although it seemed to me not to be very important in the context of vicarious liability (it was more important to the facts of the second assault), I find on the evidence of Mr Mills and Mr Lacey that there were occasions, albeit rare, when apprentices might have been asked to act as linesmen and that it would have been Mr Chung rather than Mr Lacey who asked them.
    7. In short, in her submission, far from keeping the first team players and the apprentices apart, the way in which the club operated its business unavoidably brought them together and if indeed the claimant did receive “the glove” from the second defendant firstly for the perceived fault of failing to make the tea hot enough to the satisfaction of some professionals and secondly for the perceived fault of having given an erroneous line call, then there was a sufficiently close connection between those acts and the relationship between the second defendant and the club and (perhaps more obviously in the case of the lukewarm tea rather than the erroneous line call) the carrying on of the business.
    8. Of those arguments or submissions it seemed to me that the one which would have to be accepted for the claimant to succeed is that summarised in paragraph 153 above.
    9. At risk of repetition, the claimant’s case is that in the course of and for the purpose of the club’s business of football they operated a system whereby, as part of their training, the apprentices performed what might be called “menial” duties for the professional players, including cleaning their kit, preparing liquid refreshments and cleaning their dressing room and it was this feature of the case which created or enhanced the risk of a professional assaulting an apprentice. The question is whether this created or enhanced a risk of friction such that professionals would, if disgruntled for whatever reason with the performance of menial or other services for them by apprentices, deliver some form of punishment whether or not strictly contractually authorised to do so.
    10. I am invited to find that the club had created an inherent risk that, given the disparity of status between the professionals and the apprentices and the fact that the apprentices were required to perform menial services for the apprentices and in so doing come into close contact with them, real or perceived transgressions of the performance of those tasks would, in the context of an entirely male sporting workplace environment, lead not to some kind of formal complaint to management but to some form of non-contractual immediate informal sanction or punishment being imposed on apprentices by professionals.
    11. In response, the club relies on the absence of actual knowledge or active encouragement and also on the absence of any supervisory or disciplinary duties or powers expressly contractually granted to the professional footballers in relation to apprentices. I am indeed satisfied on the balance of probabilities that only Mr Lacey, or higher authority above him such as such as Mr Mills or, in a case of sufficient seriousness, the board of directors, had those formal duties or powers. I find that in fact, if Mr Lacey had witnessed what was allegedly going on or had been made aware of what was allegedly going on, he would neither have condoned nor approved but would have stopped any such practice
    12. In my judgment, the acceptance of the claimant’s submission would involve an extension of the boundaries of vicarious liability beyond the parameters of the decided authorities. I consider that if I were to accept it I would be significantly and unjustifiably extending the scope of vicarious liability. Most if not all apprentices or trainees in all workplaces, not just sporting organisations, would be at such a theoretical risk and such a finding 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 circumstances. If not a “leap”, as Mr Fewtrell suggested, it would be a step further than the authorities justify. I am not prepared to make that step on the facts of this case. In the absence of the conferring by the club on the second defendant of any formal duties or powers in relation to the apprentices or proof that the management of the club in the persons of such senior employees as Mr Lacey or Mr Mills actually knew of and condoned the alleged practice, I find that even if it had occurred (as to which the claimant has not discharged the burden of proof) it would have been deliberate and intentional or reckless conduct involving a serious assault outside the course of the second defendant’s employment. In other words, it would have been conduct of a kind analogous to that in the cases described by Longmore LJ in Graham as ones in which it is inappropriate to impose vicarious liability.
    13. In summary, even if I had found that the claimant had proved his case against the second defendant I would have found that he had failed to prove it against the first defendant, that is to say that he had failed to establish his entitlement to hold the club vicariously liable for the second defendant’s tortious conduct.
    14. Accordingly if, contrary to my primary finding that the claim against the second defendant fails, the claimant had proved that he was assaulted by the second defendant (assisted by other professionals) on either or both of the two occasions alleged, the criteria for the imposition of vicarious liability for such assault or assaults would not have been made out on the particular facts of this employment relationship. I would have determined issue (3), as set out in paragraph 28 above, in the negative. The claimant would not have been entitled to judgment jointly and severally against the first defendant (the club) as well as against the second defendant.
CONCLUSION
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