TVZ & Ors v Manchester City Football Club  EWHC 7 (QB), on BAILII.
Eight claimants sought compensation for sexual abuse perpetrated by Barry Bennell (“Bennell”) in the early 1980s when they were aged between 10 and 14 and playing for football teams coached by Bennell. They argued that Bennell was working for the defendant (“MCFC”) and that it was liable for his conduct. The Court found that the abuse had occurred, so went on to deal with a limitation period issue, the vicarious liability argument and damages.
.The claimants did not submit that MCFC was directly liable to them. This note is therefore concerned only with the vicarious liability argument ( – ).
A helpful summary of the ‘stage one‘ legal principles as developed in recent English caselaw appears at  – . The Court went on to say at :
The paradigm relationship of master and servant is that of employer and employee. The antithesis is the relationship with an independent contractor. The former relationship satisfies stage 1 of the test, the latter does not. That leaves open the question of the application of the concept of vicarious liability to relationships that do not neatly fit into the distinct categories of “employee” or “contractor”. The short answer is that stage 1 of the test will be satisfied if and only if the relationship is “akin to employment”, and not where “the tortfeasor is carrying on business on his own account” – see Christian Brothers per Lord Phillips at  and Barclays Bank per Lady Hale at .
The question that then arises is how a court should determine whether a relationship is akin to employment. Six ‘akin to employment’ relationship examples are listed at  and five ‘not akin to employment’ relationships are listed at .
The trial judge went on to describe the stage two principle by reference to earlier House of Lords authority as:
…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.
Stage one – akin to employment.
Having considered the evidence the Court held that there was no contract between Bennell and MCFC. He was therefore neither an employee nor an independent contractor (). At least under English law, the fact that he was not an employee does not preclude the possibility of vicarious liability if, in reality, Bennell and the defendant were in a relationship that is akin to employment (). In analysing that relationship the trial judge considered seven indicia ( – ) before concluding () that:
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.
Stage two – closely connected.
It was not necessary for the trial judge to determine the stage two issue, but that was done in any event. Noting that the abuse generally occurred either at Bennell’s homes, or at residential premises occupied by Bennell during a football tour or holiday, the trial judge held ():
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 …. Adopting the language of Lord Millett in Lister at , and that of Stuart-Smith LJ in DSN at , 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.
On the application of the stage one and stage two requirements referred to above the defendant was not vicariously liable for Bennell’s conduct.