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Vicarious Liability in Sexual Abuse Claims
This judgment is essential reading for practitioners specialising in abuse claims. It is also of considerable importance to those who practise in personal injury more broadly. With respect to vicarious liability, it provides guidance on:
In the late 1970s and early 1980s, Mr. Barry Bennell was involved in the running and coaching of a number of boys’ football teams in Manchester. He was tasked by Manchester City Football Club (“the club”) as a ‘scout’ to identify promising young footballers who could later be signed by the club as a professional player. It is now known that he was a prolific predatory paedophile.
In TVZ v Manchester City Football Club  EWHC 7 (QB), eight survivors of child sexual abuse issued a claim against the club. They asserted that Mr. Bennell ran feeder teams for the club, that each of the Claimants played for one or more of those teams, and that in the course of his duties for the club Mr. Bennell abused each of the Claimants. Therefore, the club was vicariously liable for Mr. Bennell’s conduct.
The Club did not challenge the Claimants’ account of what Mr. Bennell did to them. The issues in the case were:
Mr. Justice Johnson dismissed the claim. He held that it was not equitable to disapply the time limit, and that the Club was not vicariously responsible for the abuse. This post will focus on the issue of vicarious liability. A useful reminder of the key cases in this area can be found in 1 Chancery Lane’s Webinar on ‘Hunting the Chimera’ by Edward Faulks KC, Jack Harding and Susanna Bennett.
The Principles of Vicarious Liability
Vicarious liability involves two stages. The first stage concerns the relationship between the defendant and tortfeasor – there must be a relationship of master and servant. The second stage concerns the connection between the tort and the servant’s duties – the tort must occur in the course of the servant’s employment.
The First Stage: The relationship between the defendant and tortfeasor
The paradigm relationship of master and servant is that of employer and employee. The antithesis is the relationship with an independent contractor. For relationships which do not fit neatly fit into the categories of ‘employee’ or ‘contractor’, stage 1 will be only be satisfied if the relationship is “akin to employment”.
There is a plethora of activities on the first stage. Mr. Justice Johnson examined these and considered the following factors to be relevant when assessing whether the relationship satisfied stage 1 of the test:
The critical issue was therefore whether Mr. Bennell was in a relationship with the Club that was ‘akin to employment’. Mr. Justice Johnson held that the Claimants had not established this ingredient of their case:
Mr. Justice Johnson held that Mr. Bennell’s relationship was that of a volunteer football coach who ran a number of junior teams and acted as a volunteer unpaid scout. This was his enterprise, undertaken at his own risk, which the Club did not control. While Mr. Justice Johnson did not view this case as one that was ‘doubtful’, he considered the ‘five incidents’ identified by Lord Phillips in Christian Brothers, which Lady Hale suggested in Barclays Bank “may” help to determine which side of the line cases fell. On the proper application of these ‘incidents’, the relationship between Mr. Bennell and the Club was not akin to employment:
Employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against liability.
The Club had the means to compensate the Claimants; Mr. Bennell did not. However, there was no evidence the Club insured against public liability arising from the activities of Mr. Bennell and other volunteer scouts.
Tort committed as a result of activity being taken by the employee on behalf of the employer.
Mr. Justice Johnson noted the ambiguity of the terms ‘as a result’ of and ‘activity’. If the ‘activity’ is deemed to be simply the general scouting and coaching, then the incident is satisfied. Were it not for Bennell’s connection with the Claimant, the abuse would not have occurred. However, if a more focused approach is applied to “activity”, so that it is more closely connected with the abuse, then this incident is not satisfied. The activity would be defined as accommodating the boys overnight so that the abuse could take place. In no sense was Mr. Bennell accommodating the boys on behalf of the Club.
Employee’s activity is likely to be part of the business activity of the employer.
The application of this incident is similar to incident #2. It again depends on the way in which “activity” is defined; and whether a broad or focused approach is preferred.
Employer….created the risk of the tort committed by the employee.
There was no substantial, direct and inherent risk of sexual abuse from coaching young football teams. The progress from coaching football teams, in public, under the gaze of parents, to sexual assaults, involved a chain with multiple links, none of which could be characterised as an ‘outgrowth’ of its predecessor. Indeed,
Employee will have been under the control of the employer
Mr. Justice Johnson considered that there was evidence of even a vestigial degree of control by the Club of Mr. Bennell. There was no reliable evidence that it directed what he did in the course of his coaching duties.
The Second Stage
In Wm Morrison Supermarkets plc v Various Claimants  UKSC 12, Lord Reed approved the test articulated by Lord Nicholls in Dubai Aluminium v Salaam  UKHL 48:
“The wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment”.
The fact that wrongful conduct is unauthorised, or even criminal, does not prevent it being conduct that is closely connected with acts that are authorised. In cases of sexual abuse of children, the courts have emphasised the importance of criteria that are particularly relevant to that form of wrongdoing, such as the employer’s conferral of authority over the victims, which he has abused.
For example, in Lister v Hesley Hall  UKHL 22, a finding of vicarious liability was found on the basis that care and safekeeping of boys in a residential school were entrusted to the warden. That gave him access to the premises, but also the Defendant conferred upon him a general duty to look after and to care for the boys. He performed his function in a way which was an abuse of his position and an abnegation of his duties, and that indicated that his conduct fell within the course of his employment.
In the event that he was wrong about whether Mr. Bennell’s position was ‘akin to employment’, Mr. Justice Johnson assessed whether the abuse was committed in the course of employment. He held that the Claimants did not satisfy the second stage for the following reasons:
Assessing vicarious liability is a fact-sensitive exercise. Nevertheless, there are three points of general application which can be drawn from TVZ.
First, this judgment presents a nuanced approach to the question of control. In both the first and second stages of assessing vicarious liability, a court will not only examine the right of control, but how that control is exercised. Of particular note is Mr. Justice Johnson’s comments on ‘vestigial control’. He expressly rejected a suggestion by counsel for the Claimant that vestigial control by a defendant is sufficient to conclude that the relationship is akin to employment. Indeed, he cited Barclays Bank plc v Various Claimants  UKSC 13 to show how vestigial control can be exercised even over an independent contractor.
Second, Mr. Justice Johnson’s analysis of the five ‘incidents’ in Christian Brothers is striking. These policy reasons have long been seen as favourable for claimants. However, Mr. Justice Johnson found that on deeper inspection they were not as favourable to claimants as initially seemed. For example, the question of compensation is inextricably linked to the availability of public liability insurance against the conduct in question. Practitioners should undertake a close analysis of the incidents in Christian Brothers, and avoid undertaking a ‘deceptively easy’ analysis.
Third, this judgment is a useful reminder of how sexual abuse cases can satisfy the requirement for a tort to be committed in the course of employment. The core test is whether the employee’s act was an ‘abnegation of a specific duty imposed upon by his employment’. Therefore, any analysis of the ‘close connection’ test in sexual abuse cases requires an analysis of (1) the duties and authority conferred upon the tortfeasor, and (2) how the abuse represented an abuse of position, and an errant performance of their entrusted functions.