QBD (Preston) (Judge Butler QC) 30/10/2015
TORTS – SPORT
ASSAULT : BATTERY : BURDEN OF PROOF : CREDIBILITY : FOOTBALL CLUBS : PSYCHIATRIC HARM : VICARIOUS LIABILITY
A former apprentice footballer failed to discharge his burden of proof in a claim for personal injuries arising from assaults allegedly suffered at the hands of a professional player. Even if he had established his claim, it would have been an unjustified extension of the doctrine of vicarious liability to have held the club liable for the assaults, since no formal duties or powers were conferred on the professional players in relation to the disciplining of apprentices.
The claimant claimed damages for personal injuries arising from two assaults alleged to have taken place while he was apprenticed to the first defendant football club.The events in issue were alleged to have taken place in 1986 and 1987, when the claimant was aged 16 and 17 and the second defendant was a professional player with the club. According to the claimant, he was subjected to a practice known as “gloving”, whereby a gloved finger was covered in a hot rubbing ointment and inserted into his rectum by the second defendant. That practice was said to have been commonly used against apprentices as a form of punishment by the professional players for failing to perform menial tasks for them, such as cleaning their kit. According to the claimant, the system of apprenticeship in the club created an enhanced risk that the professionals would punish the apprentices if displeased with them, whether or not contractually authorised to do so. The claimant said that he had begun to abuse alcohol immediately after the first incident and had continued to do so for 20 years, and had also suffered from depression and relationship difficulties as a result of the alleged assaults. The second defendant denied that the incidents had taken place. The issues were whether the assaults had taken place; if so, whether the club was vicariously liable for them; and whether the claimant had suffered any physical or psychiatric injury. When applying for a mortgage in 1996, the claimant had signed a statement that his alcohol consumption was very low. He had given contradictory evidence about his alcohol consumption at earlier limitations hearings.
(1) The instant case was not one of historic sexual abuse, but a case of what was in effect an accepted practice in the context of the football club. Although current terminology might describe the acts in question as sexual offences, at the time of their alleged commission it would not have been conventional to use criminal terminology for the purpose of civil proceedings. The claim was not presented as a claim for sexual assault and there was no suggestion of a sexual motivation on the part of the second defendant. There was no need at common law for the claimant to prove that the second defendant intended to cause him injury; merely that he intended the conduct, coupled with an understanding that the contact exceeded what was acceptable, Wilson v Pringle  Q.B. 237 followed (see paras 19-23 of judgment).
(2) The claimant’s inconsistent evidence about his alcohol consumption undermined his credibility and precluded the making of any findings of fact based on his unsupported evidence. There was no contemporaneous evidence of his having failed to perform as a footballer due to excessive alcohol consumption. The evidence concerning his personal relationships was also at variance with his accounts given to the psychiatric experts. On the balance of probabilities, he had avoided revealing evidence which would not assist his case. The mere fact of a diagnosis of depression after the claimant made his allegations did not of itself prove that they were true. Nor was there any support for his assertion that his performance as a footballer deteriorated following the alleged assaults; on the contrary, it appeared to have improved. The claimant had therefore failed to discharge the burden of proof in his claim against the second defendant and it followed that his claim against the club also failed (paras 51-62, 138-140).
(3) (Obiter) Even if the claimant had made out his case, the second defendant had no express or implied power or duty conferred upon him by the club to discipline or chastise the apprentices. To accept the claimant’s submission in that regard would be to significantly and unjustifiably extend the boundaries of vicarious liability and would amount to holding that an employer should be vicariously liable for any assault on an apprentice or trainee by a full-time employee in all circumstances. In the absence of any formal duties or powers having been conferred on the professional players in relation to the apprentices, incidents such as those alleged by the claimant would have amounted to deliberate and intentional or reckless conduct involving a serious assault outside the course of the employment relationship, Graham v Commercial Bodyworks Ltd  EWCA Civ 47,  I.C.R. 665 considered (paras 148, 152, 161-163).