Vicarious liability tightens and a new approach to quantum in child abuse cases

?Two cases, one from the Court of Appeal and the other from the High Court have narrowed the scope of vicarious liability in child abuse cases, whilst one has thrown up a new approach to the assessment in damages. ?

In DSN v Blackpool Football Club [2021] EWCA Civ 1352, the Court of Appeal reversed the decision of Mr Justice Griffith in the High Court, who had found that the Defendant club was vicariously liable for the abuse committed by a football scout, Frank Roper on a boy in his care. The judge also waived limitation. ?

The Court of Appeal upheld the judge’s finding on limitation, but took a different view on vicarious liability. Lord Justice Stuart-Smith considered the history and structure of Blackpool FC. Mr Roper clearly played a key role in the recruitment of players. He ran a sports clothing shop as well as acting as an unpaid "scout" for Blackpool FC. He also ran his own youth football teams. There were two of these, and the second was "informally associated" with Blackpool FC, insofar as it was widely regarded as a "feeder" team for Blackpool FC.?

Stuart-Smith LJ reminded himself that the mere giving of an opportunity to commit abuse was not sufficient to establish vicarious liability. The critical question was whether the features of the relationship between the abuser and Blackpool FC were to be regarded as akin to employment as opposed to Mr Roper carrying on business (broadly construed) on his own account.?

The existence and operation of two teams run by Mr Roper did not evidence the nature of the relationship. There was no evidence that Blackpool FC had any say in the existence or operation of those teams at all. It would be accurate to say that Mr Roper's scouting activities conferred benefits upon Blackpool FC that were important for the development and survival of its business. The fact that Blackpool FC gave free rein and full access to its premises, including the desirable areas such as the directors' box and the players' areas, suggested close involvement between Mr Roper and the club; but on closer examination, even the giving of those privileges provided limited evidence about the real nature of the relationship save to suggest, in a very general sense, that Mr Roper could be described as being "embedded" in Blackpool's business.?

Stuart-Smith LJ concluded that the evidence as identified and found by the Judge did not justify a finding that the relationship between Blackpool FC and Mr Roper was one that could properly be treated as akin to employment. Whilst what Mr Roper did as a scout conferred important benefits upon Blackpool FC in the conduct of its business and that he was afforded deference and welcome by the club in recognition of his having produced good players in the past and in hope that he would continue to do so, none of the normal incidents of a relationship of employment were otherwise present. There was no evidence of any control or direction of what he should do. The fact that he was an unpaid volunteer who had a full-time job running his own sportswear business was not determinative; but it was indicative of a person who was in a position to act independently to support a club that was in dire financial straits. ?

The Court of Appeal’s decision was followed by the decision of Mr Justice Johnson in the High Court in TVZ and Others v Manchester City Football Club [2022] EWHC 7 (QB). Once again, the decision on vicarious liability went against the Claimants. ?

The Claimants were eight men, who sought compensation for sexual abuse perpetrated by a football scout, Barry Bennell in the early 1980’s. They alleged that Bennell was working for the Defendant (“MCFC”) and that it was vicariously liable for his conduct. ?

MCFC had set up a compensation scheme for the victims of Bennell’s abuse, but the Claimants had given up their right to claim under that Scheme, and had chosen instead to launch litigation proceedings. ?

As in DSN the issue of both vicarious liability and limitation was in dispute. ?

Johnson J refused to disapply limitation. His reasoning was that the issue of vicarious liability was highly fact sensitive, and its resolution was not entirely straightforward. There was now no clear contemporaneous documentary record of the relationship between MCFC and Bennell. So far as documents existed, they were fragmentary, incomplete, and of limited assistance. So far as documents had been destroyed or mislaid, Johnson J did not consider that was due to any irresponsibility on the part of MCFC. If the claim had been brought in time, then it was likely that there would have been a much more extensive matrix of evidence on these matters. Johnson J did not therefore consider that it was equitable to disapply the time limit. ?

However, he would still deal with the issue of vicarious liability if he was wrong on limitation. The vicarious liability test had two stages, Stage One being whether Bennell was an employee or “akin” to an employee of the Defendant, and Stage Two being the need for a close connection between the Bennell’s job and the abuse that he committed.?

In relation to Stage One, the respective motivations of the parties to the relationship did not involve ties of obedience and control. It was open to either side to terminate the relationship at any point. MCFC did not have any right to control how Bennell carried out his scouting activities. It was up to him who he recommended to MCFC and how he identified gifted young players. In practice, Bennell used his status as a scout to bolster his growing and largely self-promoted reputation as someone who had connections with football clubs, particularly MCFC, and who could provide young boys with a potential route to a professional footballing career. The compensation scheme established by MCFC demonstrated that MCFC considered it appropriate to make ex gratia payments to victims of Bennell’s abuse. It was, however, established without admission as to liability, and Johnson J did not consider that the fact or content of the scheme threw further light on the nature of the relationship between Bennell and MCFC.?

There was no contract between Bennell and MCFC. He was therefore neither an employee nor an independent contractor. He could be “akin” to an employee but a number of points weighed against that proposition. First, the evidence showed that Bennell was in full-time paid employment (for at least part of the relevant period) working in a children’s home. His footballing activities were voluntary and undertaken in his spare time. Second, Bennell had a portfolio of footballing activities, some of which had nothing to do with MCFC. Third, Bennell took the financial risk of the footballing activities that he arranged. Fourth, there was very little evidence of MCFC exercising control over Bennell’s activities. Fifth, an employment relationship involved an implied obligation to comply with an employer’s lawful and reasonable instructions. Here, there was no evidence that Bennell was under any obligation to comply with instructions given by MCFC. He agreed to organise the teams at some trial games, but there was no evidence that he was under any obligation to do that. Sixth, one of the features of some relationships that might be treated as being akin to employment was that the quasi-employer retained a degree of disciplinary control short of the ultimate sanction of termination of the relationship. Consistent with the lack of any control by MCFC over how Bennell ran his teams, there was no evidence that he was subject to any form of disciplinary code. Seventh, Bennell’s involvement with MCFC was not part of its core business of running a successful first division team. Nor was it part of the work it did to support its core business by running apprentice and associated schoolboy teams that might become a source of recruitment into the adult game. ?

For all these reasons, Bennell was not in a relationship with MCFC that was akin to employment. ?

However, Johnson J said that if he was wrong and this was a “doubtful” case, then he would go on to consider the five “incidents” identified by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 that might still satisfy Stage One of the vicarious liability test. ?

The first incident was “the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability.” There was no evidence that MCFC ever did insure against any public liability arising from the activities of Bennell or other volunteer scouts and coaches. ?

The second incident was “the tort will have been committed as a result of activity being taken by the employee on behalf of the employer.” However, a simple factual causation test was not, though, sufficient for the imposition of vicarious liability. If a more focussed approach was applied to “activity” so that it was more closely connected with the abuse, then the incident was not satisfied. That was because the activity would then be defined as accommodating the boys overnight. It was that which provided the immediate opportunity for the abuse to take place. In no sense was Bennell accommodating the boys on behalf of MCFC. MCFC had no reason to accommodate the boys, it did not allocate the task of accommodating the boys to Bennell, and there was no evidence that it even knew that Bennell was doing so.?

The third incident was “the employee’s activity is likely to be part of the business activity of the employer.” If it was having 11–13-year-old boys to stay overnight, then that had nothing to do with MCFC’s business activities.?

The fourth incident was “the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee.” There was not a substantial direct and inherent risk of sexual abuse from football coaching. ?

The fifth incident was “the employee will, to a greater or lesser degree, have been under the control of the employer.” Johnson J did not consider that the Claimants had shown that Bennell was subject to even a vestigial degree of control by MCFC, beyond that which MCFC could impose over an independent contractor. ?

Even though Stage One of the test was not met, Johnson J considered Stage 2. ?

Again, this part of the test was not met. There was a world of difference between the retention of a football coach and a teacher at a residential school. The latter was responsible, as an inherent part of the job, for the welfare of children in the school’s care for 24 hours a day. They lived in the same accommodation as part of their job. The abuse of children who had been placed in such a teacher’s care was an abnegation of the positive duty allocated to the teacher by his employer. Nothing, on the evidence, suggested that it was ever contemplated by anyone at MCFC that children would stay with Bennell, far less that he was required to accommodate the children in the course of his ordinary duties as a football scout or coach. ?

Consequently, the Defendant was not vicariously liable for Bennell’s abuse. ?

In case his findings against the Claimants on limitation and vicarious liability were wrong, Johnson J went on to make an assessment on damages. It was on this issue that the learned judge displayed a very much more generous approach to the Claimants. ?

A striking feature of his judgment was that Johnson J decided to make separate awards for (1) the abuse itself, including its immediate consequences, and (2) the longer-term psychiatric disorder caused by the abuse. Normally in cases of this nature, the courts make one award for pain, suffering and loss of amenity taking into account both the short term and long term consequences of the abuse. Any award for aggravated damages is normally subsumed within this one award, rather than being awarded separately, an approach that Johnson J followed. ?

Johnson J explained that there were different strands to the non-monetary losses. There were the psychiatric disorders that each Claimant sustained. That was addressed by an award of general damages for what was conventionally termed “pain, suffering and loss of amenity.” The Judicial College published guidelines which set out the factors that should be considered, and the range of awards that were appropriate for different types of injury. ?

However, each individual sexual assault perpetuated by Bennell was (irrespective of the consequences) in and of itself a tort which merited an award of (at least nominal) damages. Johnson J made the point that in breach of privacy cases, substantial damages could be awarded for the loss of autonomy occasioned by the breach itself, irrespective of any distress - Gulati v MGN Ltd [2015] EWHC 1482 (Ch). It was not easy to see why the law should afford less protection to bodily autonomy and integrity than privacy and autonomy over personal information, or why it should value the protection of children from sexual abuse less than the protection of celebrities from breaches of privacy. Johnson J also referred to other cases, Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871 (a discrimination case) and Hugh Martins v Mohammed Choudhary [2007] EWCA Civ 1379 (a harassment case) where the court made separate awards for injury to feelings and psychiatric damage. ?

These authorities did not lay down a blanket inflexible rule that there should be a single award for all non-pecuniary losses. The appropriate way of structuring an award would depend on the particular circumstances of each case, always taking account of the need to ensure full compensation but to avoid double recovery and to explain how the award had been calculated. In a straightforward assault case where the injuries were minor, a single award might be appropriate.?In cases where the only loss was injury to feelings then, again, it might be appropriate to make a single award to include any element that might otherwise be covered by aggravated damages. ?

The result of this approach was that most of the Claimants received very much higher awards for their abuse and its consequences, than has been seen in other child abuse cases. The first Claimant, TVZ, whose claim came within the scope of the most serious category, received ￡75,000 for the abuse, and a further ￡65,000 for pain, suffering and loss of amenity.??

In relation to Johnson J’s novel approach to damages, this has not been echoed by the 16th edition of the Judicial College Guidelines, which was published on the 11th April 2022. ?This has a new sexual and physical abuse category contained in Chapter 4 – C but the ?award includes not only damages for the abuse itself but also psychiatric injury. ?

It could be said that the decisions in DSN and TVZ are restricted to the fluid relationships that existed in those cases between football clubs and scouts. However, the worrying aspect of the judgements is that “volunteers” who perform a great many tasks for sporting organisations could be outside the scope of vicarious liability. This is a particular concern in light of the increasing numbers of allegations of the abuse of children in sport. ?

As for the judgement of Johnson J on damages, it remains to be seen whether that approach will be followed by other courts. Defendant insurers will contest it, but the point was well made. There is no good reason as to why the law should award huge sums to protect celebrities from privacy breaches, but far less to children who are the victims of abuse.

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