VICARIOUS LIABILITY AND SEXUAL ABUSE: THIS IS NOT A TEST OF INTUTION, BUT ONE THAT IS TIGHTLY CONTROLLED

The judgment of Mr Justice Johnson in  TVZ & Ors v Manchester City Football Club [2022] EWHC 7 (QB) makes for difficult reading. The judge pays tribute to the remarkable men who brought the action, all of whom had been sexually abused. There was no question that these were honest claimants who had suffered immeasurably.  However the judge found that the abuser did not have sufficient relationship with the defendant club for it to be vicariously liable for its actions.

“It is not open to a court to impose vicarious liability on the basis of an intuitive feeling for where the justice of a case lies. Rather, it is necessary to apply the tightly controlled tests set down in the authorities…”

THE CASE

The claimants had all been extremely promising young footballers.  They had all been abused by a coach, Bennell, who claimed he was a representative of the defendant football club.

THE DEFENDANT’S POSITION

The defendant’s case was that

MCFC accepts that Bennell held himself out as a representative of MCFC. It does not contest the claimants’ accounts that this influenced their decisions to play for his teams. Nor does it challenge the claimants’ accounts as to Bennell’s acts of abuse. MCFC says that any ties between it and Bennell were severed in 1979 when he went to work at Taxal Edge Children’s Home in High Peak, Derbyshire. It says the teams he ran thereafter “had no connection whatsoever with MCFC.” It argues that MCFC is not vicariously liable for Bennell’s torts against any of the claimants”

THE JUDGMENT ON VICARIOUS LIABILITY

The judge reviewed the principles relating to vicarious liability in some detail. Applying the principles to this case the judge found that the defendant was not vicariously liable for the Bennell’s acts.

1. 309. Stage 1: I have set out the legal test and the approach to be taken at paragraphs 239 – 263 above.

1. 310. There was no contract between Bennell and MCFC. He was therefore neither an employee nor an independent contractor. It follows that stage 1 cannot be satisfied on the simple basis that Bennell was an employee of MCFC. Nor can the claimants’ case fail at stage 1 on the simple basis that Bennell was an independent contractor of MCFC.

1. 311. The nature of the relationship (effectively that Bennell was a volunteer, providing services to MCFC without reward) is such that the employment/independent contractor distinction does not directly apply. The fact that he was not an employee does not preclude the possibility of vicarious liability. As Lord Reed JSC made clear in Cox (at [31]), if there is some technical reason that someone is not an employee (here, that Bennell is a volunteer and there was no contract) that does not enable a defendant to escape a finding of vicarious liability if, in reality, they are in a relationship that is akin to employment. Moreover, DSN does not foreclose the possibility that (on facts that are materially different from DSN) a football club might be vicariously responsible for the actions of its scouts. Stage 1 would clearly be satisfied in respect of the relationship between MCFC and Ken Barnes (or any of its other employees), or in respect of the relationship between Crewe Alexandra and Bennell. The issue, therefore, is whether Bennell was in a relationship with MCFC that was akin to employment.

1. 312. I do not consider that the claimants have established this essential ingredient of their case.

1. 313. First, Bennell was in full-time paid employment (for at least part of the relevant period) working in the children’s home at Taxal Edge. His footballing activities were voluntary and undertaken in his spare time. This is far from determinative, but it is indicative of his independence – see DSN at [128] per Stuart-Smith LJ.

1. 314. Second, Bennell had a portfolio of footballing activities, some of which had nothing to do with MCFC. His activities as a football coach had a distinct existence, independent of MCFC. His football coaching pre-dated any involvement with MCFC and continued after the termination of the relationship. When he moved to northwest England, he first started a team – Senrab – that bore the same name as a team that he had been involved with in London. It had nothing to do with MCFC. When he moved to Crewe Alexandra, he took a number of the boys that he had been coaching with him. During the period in question, he started teams, or took over teams, that did not have any connection with MCFC (Glossop Juniors / North West Derbyshire / New Mills / White Knowl). They were certainly not under the control of MCFC, and MCFC did not have any say in the decision as to whether Bennell ran them (far less how he ran them). The courses he ran at Butlins were the result of a separate, private arrangement, between Bennell and Butlins. The tours to Spain and Wales and the Isle of Wight were undertaken on his own initiative with no direction or control from MCFC.

1. 315. Third, Bennell took the financial risk of the footballing activities that he arranged. He was not even reimbursed expenses. So, if he was unable to recoup the cost of a tour or of team kit or pitch hire from subs or fund-raising activities, he was left out of pocket.

1. 316. Fourth, there is very little evidence of MCFC exercising control over Bennell’s activities. MCFC asked Bennell to coach a team, and MCFC arranged for others to manage the team. MCFC could have terminated the relationship. That, however, just shows that there was a relationship which MCFC was able to initiate and terminate. It does not say anything about the nature of the relationship. Control is only an indicium of an employment relationship when it is the sort of control that cannot be exercised over an independent contractor. What is required is evidence that MCFC was able to control how Bennell undertook his coaching activities, or that it told him not just what he should do, but also what he should not do. There is very little evidence of this sort of control. There is nothing to suggest that Bennell had to undertake all coaching sessions personally, and that he could not appoint a substitute to take his place if, for example, he was unwell or had a conflicting engagement. There is no evidence that MCFC instructed Bennell in the style of coaching to be adopted, or where games should be played, or what kit should be worn, or when (or where) training should take place. There is considerable evidence that Bennell recruited players for his teams at his own initiative and (with few exceptions) there is no evidence of any involvement on the part of MCFC. There are one or two instances when MCFC asked Bennell (or the team manager) to take on particular boys, but the evidence does not show that MCFC was able to insist on this if Bennell had taken a contrary view (Ray Hinett said that he “would not” have refused such a request, but that is not quite the same thing). There is no evidence that MCFC ever told Bennell what he should do (beyond the basic allocation of tasks which is equally consistent with a relationship with an independent contractor). As in DSN, and adopting the words of Lord Reed in Cox (at [21]), there was not even a vestigial degree of control. Bennell had complete autonomy over the planning, running, administration and financing of the teams, save that MCFC had some involvement in appointing the team manager and, after Bennell left, it merged two of the teams.

1. 317. Fifth, an employment relationship involves an implied obligation to comply with an employer’s lawful and reasonable instructions. In relationships that are akin to employment, something similar can be identified. Thus, in the cases of religious organisations, it has been observed that the “ties of loyalty and obedience [are] even tighter than those imposed by a contract of employment” – see DSN at [54] and Christian Brothers at [8]. Police officers and members of the armed services are subject to disciplinary procedures as part of their conditions of appointment. Here, there is 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.

1. 318. Sixth, one of the features of some relationships that might be treated as being akin to employment is that the quasi-employer retains a degree of disciplinary control short of the ultimate sanction of termination of the relationship. Thus, in the case of some religious organisations, there is the possibility of “internal ecclesiastical judicial action” – see BXB at [21(100)]. Police officers and service personnel are likewise subject to disciplinary sanction.  Consistent with the lack of any control by MCFC over how Bennell ran his teams, there is no evidence that he was subject to any form of disciplinary code.

1. 319. 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. It was one step further removed even than that. It was the running of teams for boys aged 11-13 from which boys might (or might not) be asked to attend trials to see whether they would be suitable for recruitment as associated schoolboys at age 14.

1. 320. For all these reasons, Bennell was not in a relationship with MCFC that is akin to employment. His relationship was that of a volunteer football coach who ran a number of junior teams (including teams with a connection to MCFC) and who, in that context, acted as a volunteer unpaid scout, recommending players to MCFC for them to consider taking on as associated schoolboys, and assisting MCFC in the conduct of trial games. That was his enterprise, undertaken at his own risk, which MCFC did not control, but was a relationship of mutual benefit to MCFC and Bennell.

1. 321. On the available evidence, the answer to the question of whether the relationship is akin to employment is sufficiently clear: Bennell was carrying on his own independent enterprise and was not in a relationship with MCFC that is akin to employment. It follows, as Lady Hale explained in Barclays Bank (at [27]), that it is not necessary to consider the five incidents identified by Lord Phillips in Christian Brothers at [35]. However, in case I am wrong, and this is a “doubtful” case, then (as Stuart-Smith LJ did in DSN) I go on to consider the five incidents identified by Lord Phillips in Christian Brothers at [35], which Lady Hale suggested in Barclays Bank “may” help to determine which side of the line such cases fall.

1. 322. The first incident is “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.” MCFC has the means to compensate the claimants. Bennell does not. Whether or not MCFC can have been expected to have insured against the liability rather depends on the relationship between MCFC and Bennell. There is thus a risk of circular reasoning. There is no evidence that MCFC ever did insure against any public liability arising from the activities of Bennell or other volunteer scouts and coaches. Nor is there any evidence that other clubs did so.

1. 323. The second incident is “the tort will have been committed as a result of activity being taken by the employee on behalf of the employer.” The application of this incident depends on how close a connection is required to satisfy the “as a result of” test, and what one takes to be the “activity.” If the activity is the general scouting and coaching that Bennell undertook, and if a long chain of causation is permitted, then the incident is satisfied: were it not for Bennell’s connection with MCFC the abuse would not have occurred. That connection provided the opportunity for Bennell to embark on a grooming process that resulted in the abuse. The boys, and to some extent their parents, were blinded by the possibility that Bennell would provide the route to a professional footballing career. The claimants would never have been put in a position where the abuse was able to take place if it were not for that connection. A simple factual causation test is not, though, sufficient for the imposition of vicarious liability. If a more focussed approach is applied to “activity” so that it is more closely connected with the abuse, then the incident is not satisfied. That is 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 is no evidence that it even knew that Bennell was doing so.

1. 324. The third incident is “the employee’s activity is likely to be part of the business activity of the employer.” Again, the application of this incident depends on the way in which “activity” is defined. If it is the coaching of footballers, then this is a core part of MCFC’s business activity. If it is having 11–13-year-old boys to stay overnight, then that has nothing to do with MCFC’s business activities.

1. 325. The fourth incident is “the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee.” This approaches the same concept as the second incident but from a different perspective. The activity that Bennell was employed to carry on was that of coaching young football teams. That is a group activity which can be expected to be carried out in the presence of others (other boys, parents, volunteers, the team manager). As in Jacobi, there is not a substantial direct and inherent risk of sexual abuse from such an activity. The progress from coaching football teams, effectively in public, under the gaze of parents and others, to the sexual assaults, involves a similar “chain with multiple links, none of which could be characterised as an inevitable or natural “outgrowth” of its predecessor” as that in Jacobi. To adapt slightly the language of Binnie J at [80] (see paragraph 273 above):

(1)   The coaching provided Bennell with the opportunity to work with children, and to exercise a controlling influence over them.

(2)   While it was undoubtedly part of Bennell’s job to develop a positive rapport with the children, the relationship envisaged by that of a coach has no element of intimacy (to use the language of Jacobi) comparable to the situation in Bazley (or, for that matter, Lister or Christian Brothers).

(3)   While Bennell might come into occasional physical contact with children by reason of his job, eg in demonstrating a tackle or shoulder barge, the authorised “touching” had no more to do with parenting, nurture or intimacy than could be said of a normal adult reaching out to steady a child who, for example, tripped over a carpet.

(4)   Bennell enticed each of the claimants to his home to cultivate a relationship. His role as a scout or coach did not require him to be with members of the team at his own home, overnight.

(5)   Bennell established his own bait of home attractions, such as video games, junk food, movies and exotic pets that had nothing to do with football coaching. It was not part of his job to entertain children at home after hours.

(6)   Unlike the situation in Bazley, each claimant’s parent was a parental authority interposed between the assailant and his victims. They gave permission to the claimants to go to Bennell’s home. No doubt, knowing of Bennell’s connection with MCFC, they did not regard him as a stranger or as a threat. Nevertheless, it must have been evident to a reasonably cautious parent that Bennell’s home entertainment was not part of MCFC’s activities.

(7)   Once the children were drawn into his home-based activities, Bennell gradually increased the level of intimacy. This was not only unauthorised, but it was also antithetical to the conduct to be expected of a youth footballing coach.

(8)   Eventually, when Bennell saw his chance, he committed the assaults.

1. 326. The fifth incident is “the employee will, to a greater or lesser degree, have been under the control of the employer.” For the reasons I have given I do not consider that the claimants have shown that Bennell was subject to even a vestigial degree of control by MCFC, beyond that which MCFC could impose over an independent contractor. It could appoint him. It could terminate the relationship. But (leaving aside his involvement in trial games) there is no reliable evidence that it directed what he did in the course of his coaching duties.

1. 327. It is deceptively easy to apply Lord Phillips’ incidents in a way that leads to a conclusion that it is fair, just and reasonable that MCFC should be vicariously liable for the activities of Bennell. It is a big, well-resourced club. It could easily meet the liabilities to the claimants, at a fraction of the amount that it pays its star players. Bennell was connected to MCFC. That connection gave him the opportunity to commit grievous acts of abuse against young, innocent, and vulnerable boys. They have no real alternative remedy. However, that is not sufficient to meet the test for vicarious liability. It is not open to a court to impose vicarious liability on the basis of an intuitive feeling for where the justice of a case lies. Rather, it is necessary to apply the tightly controlled tests set down in the authorities, including the corrective guidance in Barclays Bank.

1. 328. Having considered the application of each of Lord Phillips’ five incidents to the circumstances of this case, I do not consider that they indicate that the relationship between Bennell and MCFC was akin to employment. Nor is there any other reason to conclude that the relationship was akin to employment.

1. 329. It follows that the claimants have not established the first stage of the test for vicarious liability.

1. 330. Stage 2: The second stage does not arise, because the first stage has not been established.

1. 331. If I am wrong about that, it is necessary to consider the second stage. I do so on the assumption that (contrary to the finding I have made) the relationship between Bennell and MCFC was akin to employment of the former, by the latter, as a scout, and a coach of teams that included the claimants, and someone who would help organise teams at trial games.

1. 332. The abuse generally occurred either at Bennell’s homes, or at residential premises occupied by Bennell during a football tour or holiday. The claimants were staying at Bennell’s home because he was their football coach and they and their parents had somehow been persuaded that it was sensible and convenient for them to stay with Bennell before or after matches, or even for periods of time during the week. There was therefore a connection (in the sense of a factual causal connection) between Bennell’s role as their coach and the boys staying at his home, in that his role resulted in the claimants staying with him and thus gave him the opportunity to abuse them.

1. 333. Nevertheless, there is a world of difference between the retention of a football coach and a teacher at a residential school. The latter is responsible, as an inherent part of the job, for the welfare of children in the school’s care for 24 hours a day. They live in the same accommodation as part of their job. The abuse of children who have been placed in such a teacher’s care is an abnegation of the positive duty allocated to the teacher by his employer. So too, a priest is expected, in the course of his priestly duties, to see members of the public, including vulnerable members of the public, on their own in his home. The abuse of a vulnerable boy by a priest in those circumstances is the abnegation of the responsibilities allocated to the priest by his employer.

1. 334. Nothing, on the evidence, suggests 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 (see the analogy with Jacobi at paragraph 325 above). Adopting the language of Lord Millett in Lister at [82], and that of Stuart-Smith LJ in DSN at [146], there is nothing to suggest that MCFC either had or assumed responsibility for the boys staying with Bennell, or that it entrusted them to his care, or that the abuse of the children was the abnegation of any positive duty allocated to him by MCFC. The fact that the children, and their parents, had been groomed into believing that it was in some way part of Bennell’s role as a scout to have boys stay with him at his home does not mean that that was the case.

1. 335. So far as stage 2 of vicarious liability is concerned, the present case is akin to that of Jacobi and DSN and is materially different from Bazley, Lister, Maga, BXB and Christian Brothers.

1. 336. I reject Mr Counsell’s submission that there is a material distinction between this case and DSN. He is right that the feeder team, Nova Juniors, had been disbanded by the time of the abuse. However, the focus is on the relationship between the tortfeasor and the defendant rather than that between the defendant and the football teams in question. The decision of the Court of Appeal in DSN did not depend on whether Nova Juniors was active at the relevant time.

1. 337. Mr Counsell is also right that the New Zealand tour was not, on the Court of Appeal’s findings, part of Blackpool FC’s youth team operations. However, the tours and trips that Bennell arranged were not part of MCFC’s operations, and when he had boys to stay at his home that was not part of MCFC’s operations either.

1. 338. The finding in DSN that Blackpool FC had no say in the existence or operation of the Nova Juniors teams also, to a large extent, reads across to the present case. So too does the finding that there was limited evidence as to how Roper was appointed to his role. There is no evidence that MCFC had any say in the existence or operation of New Mills Juniors, Glossop Juniors, North West Derbyshire or White Knowl. There is some evidence that Mr Barnes was involved in the decision to set up the team that was variously known as Midas, Blue Star, Pegasus and Adswood Amateurs, including the recruitment of volunteer managers for the team, but there is no clear evidence that MCFC had any involvement in the day-to-day operation of the team. The same is true of Whitehill (save that it appears that that team was initially set up by Bennell with no involvement from MCFC).

1. 339. The finding that Blackpool FC did not have even a “vestigial” degree of control over Roper also applies to this case. There is no clear evidence that MCFC was able to tell Bennell how to carry out his duties, or what he should and should not do. The residual power to terminate the relationship does not amount to the type of vestigial control that is contemplated in the authorities (see Cox at [21], Barclays Bank at [20], and DSN at [72], [77]-[82], [87], [101], [121] and [135]). The fact that Bennell was used by MCFC to organise teams in the course of trials is not sufficient to show that it exercised even a vestigial degree of control in respect of his day-to-day coaching duties.

340. It follows that DSN cannot be distinguished from the present case. For that further reason, MCFC is not vicariously liable for Bennell’s conduct.