GB v STOKE CITY FC [2015] EWHC 2862
FACTS:-
The Claimant was born in 1970 was during the two football seasons of 1986/87 and 1987/88 a youth trainee (apprentice footballer) with the First Defendant, Stoke City Football Club Limited During those seasons, the Second Defendant was employed as a professional footballer by the club and was the regular first team goalkeeper.
The Claimant claimed that on two occasions, once in 1986 and once in 1987, the Second Defendant was guilty of trespass to his person, for which the First Defendant was vicariously liable. The assaults consisted of digital anal penetration using a glove smeared with Ralgex. Primary limitation period had expired on 25th July 1991 but the court had granted the Claimant's application under section 33 of the Limitation Act 1980 by exercising its discretion to direct that section 11 of the Act should not apply to his present claims against both Defendants.
JUDGMENT:-
Judge Butler said that the burden of proof was not the starting point but the end point of a case such as this because it was first necessary for the court, if it could, to find the facts. No judge liked to decide cases on the burden of proof if he or she could legitimately avoid having to do so. A judge should only resort to the burden of proof where he or she was unable to resolve an issue of fact or facts after having unsuccessfully attempted to do so by examination and evaluation of the evidence (Verlander v Devon Waste Management Limited [2007] EWCA Civ 835). If the available evidence was so conflicting or uncertain or fell so short of proof that there was nothing left but to conclude that the party bearing the burden of proof had not proved his case so that the court was unable to find the facts on the balance of probabilities, it must then ask where the burden of proof lay and apply the burden against the relevant party (that is to say to give the benefit of doubt to the other party). In this case, on all issues, the party bearing the burden of proof was the Claimant.
Following the judgment in Re B [2009] 1 AC 11, for the avoidance of doubt, there was a single civil standard of proof on the balance of probabilities, that was to say proof that the facts in issue more probably occurred than not. There was no sliding scale requiring stronger evidence the more serious the allegation or the more serious the consequences.
The assaults committed on the Claimant were not sexually motivated. They were physical in nature. As a matter of law, an assault might be defined as an act by which one person intentionally or recklessly caused another person to apprehend immediate unlawful personal violence or to sustain unlawful personal violence. Assault by battery might be defined as the intentional or reckless application of unlawful force by one person to another. There was at common law no need for the Claimant to prove that the Defendant intended to cause him injury, whether physical or psychological. What he must prove was that the Defendant intended the conduct not that he intended any harm by it: (see Clerk and Lindsell, 21st Edition, paragraphs 1-61 and 1-62).
The issues arising for determination were as follows:-
Judge Butler considered the evidence that he had heard. He said that the mere absence of potential witnesses for the Claimant or the Defendants was not of itself sufficient to allow the court to draw the specific inferences either that they had been approached but refused to perjure themselves or that the Claimant had instructed his solicitors not to approach them because he knew that they would not support him.
However, the involvement of the press, not only with the Claimant but also with some of his witnesses before they contacted his solicitors to offer their evidence was problematic. The Defendants understandably suggested that some witnesses had an agenda of their own to pursue and a financial interest in the outcome of this claim (whether in terms of damages claims or the sale of their stories to the press or both) and that there had been collusion between them, if not between them and the Claimant, such that their evidence should be discounted as being unreliable.
Moreover, there was nothing in the available records that the Claimant descended into alcoholic dependency, as he claimed. There was no contemporaneous record of the Claimant ever having been seen or reported to have been the worse for wear by reason of drunkenness. Nor was there any evidence from friends or relatives about his long term dependency on alcohol. He had applied for a mortgage in 1996 and signed a declaration to the effect that he drank only one pint of beer a week. He had also lied to his GP about his alcohol consumption.
When he gave his history to one of the medical experts who had examined him during the course of the police investigation, he told her that there was "no history of alcohol abuse". This went a considerable way to undermining his credibility and dissuading the court from making any findings of fact based on his evidence, unless it was unsupported by other reliable oral or documentary evidence.
The true picture about his personal relationships was also at variance with his accounts to the psychiatric experts and in his evidence.
Judge Butler considered the expert evidence of the psychiatrists. In no way could the opinion of the experts be said to support the proposition that the assaults probably occurred.
Judge Butler was quite satisfied having heard the Claimant's evidence, assessed the manner in which he gave it and compared what he now said with the contemporaneous records and uncontroversial fact of absence of contemporaneous complaints, that there was no support whatever for his assertion that his performance as a footballer deteriorated following the alleged assaults. In fact, the logs kept at the time of his football apprenticeship, demonstrated that his football playing had improved. His evidence to the effect that the assaults "knocked the desire" for football out of him was simply not supported but rather was contradicted by the contemporaneous records.
Judge Butler noted that the psychiatrists were not qualified to give an opinion as to whether the alleged abuse had an impact on the claimant's footballing career, adding that his "proficiency" would properly be the subject of "other expert opinion". The Claimant had not adduced any such evidence, despite having permission to do so.
Judge Butler considered the evidence of a witness, PL who had suffered “the glove” punishment. His was in the nature of 'similar fact' evidence of allegedly 'strikingly similar' occurrences in the years before the Claimant's time at the club, but no court, criminal or civil, had found that the events he described did occur, so it was not evidence that carried the inherent weight of a previous admission by or conviction of a defendant in related criminal proceedings, as for example in EB v Haughton [2011] EWHC 279 (QB). Nonetheless his evidence was apparently credible. Nonetheless there was a distinct false note in this witness’ evidence, that is to say the evidence that he told his parents what had happened to him but they did nothing about it. Judge Butler did not believe that this was an accurate recollection after thirty years. He found on the balance of probabilities that it was an embellishment or a false memory and that at the very least he did not tell them the full details of what he told the court (because no reasonable parent would have done nothing about it if he had).
Another witness, JE had not given oral evidence and could not be cross examined. However, his confused and uncertain recollection of both what was said and by whom it was said against the firm and unshaken evidence of others who denied it emphatically, Judge Butler could not prefer his evidence. Another witness, BD had apparently seen incidents of the “glove”. Judge Butler did not find his evidence to be credible or reliable. The evidence of three other witnesses was, to a greater or lesser extent inconsistent, contradictory, unreliable and incredible and the evidence of one other was at least in part dishonest. Their evidence, individually and collectively, provided no credible support for the Claimant's claim.
Judge Butler considered the witness evidence from the First and Second Defendants, which by contrast to that of the Claimant was impressive. Having regard to his duty to apply the burden and standard of proof appropriately, he was driven to the conclusion that the Claimant had failed to discharge the burden of proof in his claim against the Second Defendant and it should be dismissed. It followed inevitably that his claim against the club, also failed and should be dismissed.
Judge Butler would however address the issue of vicarious liability.
The First Defendant argued that the alleged assaults could not fairly and properly be regarded as being closely connected with the Second Defendant's employment because the club did not create or enhance the risk of that kind of behaviour occurring to the Claimant or any other apprentice. The club conferred no special authority on the professional players. The apprentices looked up to them as role models but this did not amount to the conferring of a power over them. Judge Butler referred to Wilson v Exel UK Limited [2010] CSIH 35 where the Scottish Court of Session decided that it was not enough to bring home vicarious liability that the acts were committed in the employer's premises during the hours of work, the mere opportunity to commit them having been provided by the fact of employment, where the employee's behaviour was an unrelated and independent venture of his own, that is to say a personal matter, rather than a matter connected to his authorised duties. Judge Butler found that the Second Defendant even as the player designated as club captain, had no express or implied power or duty or discretion conferred upon him by the club to train, discipline or chastise the apprentices. The First Defendant also relied on Mohamud v W M Morrisons Supermarkets PLC [2014] EWCA Civ 116, a decision of the Court of Appeal in which a violent unprovoked attack by a petrol station attendant employed by the Defendant was held not to give rise to vicarious liability. In Graham v Commercial [2015] EWCA Civ 47, the facts were that a person described as a "co-employee" with no apparent distinction in status between the wrongdoer and the victim, had used a cigarette lighter in the vicinity of the victim whose overalls had been sprinkled with a thinning agent and a fire started which caused serious injury. The wrongdoer's conduct was held to be similar to that of the wrongdoer in Wilson. The case fell into the category of cases in which it was inappropriate to impose vicarious liability.
Therefore even if Judge Butler had found that the Claimant had proved his case against the Second Defendant, he would have found that he had failed to prove it against the First Defendant, that was to say that he had failed to establish his entitlement to hold the club vicariously liable for the Second Defendant's tortious conduct.
FACTS:-
The Claimant was born in 1970 was during the two football seasons of 1986/87 and 1987/88 a youth trainee (apprentice footballer) with the First Defendant, Stoke City Football Club Limited During those seasons, the Second Defendant was employed as a professional footballer by the club and was the regular first team goalkeeper.
The Claimant claimed that on two occasions, once in 1986 and once in 1987, the Second Defendant was guilty of trespass to his person, for which the First Defendant was vicariously liable. The assaults consisted of digital anal penetration using a glove smeared with Ralgex. Primary limitation period had expired on 25th July 1991 but the court had granted the Claimant's application under section 33 of the Limitation Act 1980 by exercising its discretion to direct that section 11 of the Act should not apply to his present claims against both Defendants.
JUDGMENT:-
Judge Butler said that the burden of proof was not the starting point but the end point of a case such as this because it was first necessary for the court, if it could, to find the facts. No judge liked to decide cases on the burden of proof if he or she could legitimately avoid having to do so. A judge should only resort to the burden of proof where he or she was unable to resolve an issue of fact or facts after having unsuccessfully attempted to do so by examination and evaluation of the evidence (Verlander v Devon Waste Management Limited [2007] EWCA Civ 835). If the available evidence was so conflicting or uncertain or fell so short of proof that there was nothing left but to conclude that the party bearing the burden of proof had not proved his case so that the court was unable to find the facts on the balance of probabilities, it must then ask where the burden of proof lay and apply the burden against the relevant party (that is to say to give the benefit of doubt to the other party). In this case, on all issues, the party bearing the burden of proof was the Claimant.
Following the judgment in Re B [2009] 1 AC 11, for the avoidance of doubt, there was a single civil standard of proof on the balance of probabilities, that was to say proof that the facts in issue more probably occurred than not. There was no sliding scale requiring stronger evidence the more serious the allegation or the more serious the consequences.
The assaults committed on the Claimant were not sexually motivated. They were physical in nature. As a matter of law, an assault might be defined as an act by which one person intentionally or recklessly caused another person to apprehend immediate unlawful personal violence or to sustain unlawful personal violence. Assault by battery might be defined as the intentional or reckless application of unlawful force by one person to another. There was at common law no need for the Claimant to prove that the Defendant intended to cause him injury, whether physical or psychological. What he must prove was that the Defendant intended the conduct not that he intended any harm by it: (see Clerk and Lindsell, 21st Edition, paragraphs 1-61 and 1-62).
The issues arising for determination were as follows:-
- Did the first and second assaults, as described by the Claimant as having been perpetrated upon him by the Second Defendant, in fact occur?
- Was the First Defendant (the club) vicariously liable for those assaults?
- Did the Claimant suffer any and if so what injury or loss?
Judge Butler considered the evidence that he had heard. He said that the mere absence of potential witnesses for the Claimant or the Defendants was not of itself sufficient to allow the court to draw the specific inferences either that they had been approached but refused to perjure themselves or that the Claimant had instructed his solicitors not to approach them because he knew that they would not support him.
However, the involvement of the press, not only with the Claimant but also with some of his witnesses before they contacted his solicitors to offer their evidence was problematic. The Defendants understandably suggested that some witnesses had an agenda of their own to pursue and a financial interest in the outcome of this claim (whether in terms of damages claims or the sale of their stories to the press or both) and that there had been collusion between them, if not between them and the Claimant, such that their evidence should be discounted as being unreliable.
Moreover, there was nothing in the available records that the Claimant descended into alcoholic dependency, as he claimed. There was no contemporaneous record of the Claimant ever having been seen or reported to have been the worse for wear by reason of drunkenness. Nor was there any evidence from friends or relatives about his long term dependency on alcohol. He had applied for a mortgage in 1996 and signed a declaration to the effect that he drank only one pint of beer a week. He had also lied to his GP about his alcohol consumption.
When he gave his history to one of the medical experts who had examined him during the course of the police investigation, he told her that there was "no history of alcohol abuse". This went a considerable way to undermining his credibility and dissuading the court from making any findings of fact based on his evidence, unless it was unsupported by other reliable oral or documentary evidence.
The true picture about his personal relationships was also at variance with his accounts to the psychiatric experts and in his evidence.
Judge Butler considered the expert evidence of the psychiatrists. In no way could the opinion of the experts be said to support the proposition that the assaults probably occurred.
Judge Butler was quite satisfied having heard the Claimant's evidence, assessed the manner in which he gave it and compared what he now said with the contemporaneous records and uncontroversial fact of absence of contemporaneous complaints, that there was no support whatever for his assertion that his performance as a footballer deteriorated following the alleged assaults. In fact, the logs kept at the time of his football apprenticeship, demonstrated that his football playing had improved. His evidence to the effect that the assaults "knocked the desire" for football out of him was simply not supported but rather was contradicted by the contemporaneous records.
Judge Butler noted that the psychiatrists were not qualified to give an opinion as to whether the alleged abuse had an impact on the claimant's footballing career, adding that his "proficiency" would properly be the subject of "other expert opinion". The Claimant had not adduced any such evidence, despite having permission to do so.
Judge Butler considered the evidence of a witness, PL who had suffered “the glove” punishment. His was in the nature of 'similar fact' evidence of allegedly 'strikingly similar' occurrences in the years before the Claimant's time at the club, but no court, criminal or civil, had found that the events he described did occur, so it was not evidence that carried the inherent weight of a previous admission by or conviction of a defendant in related criminal proceedings, as for example in EB v Haughton [2011] EWHC 279 (QB). Nonetheless his evidence was apparently credible. Nonetheless there was a distinct false note in this witness’ evidence, that is to say the evidence that he told his parents what had happened to him but they did nothing about it. Judge Butler did not believe that this was an accurate recollection after thirty years. He found on the balance of probabilities that it was an embellishment or a false memory and that at the very least he did not tell them the full details of what he told the court (because no reasonable parent would have done nothing about it if he had).
Another witness, JE had not given oral evidence and could not be cross examined. However, his confused and uncertain recollection of both what was said and by whom it was said against the firm and unshaken evidence of others who denied it emphatically, Judge Butler could not prefer his evidence. Another witness, BD had apparently seen incidents of the “glove”. Judge Butler did not find his evidence to be credible or reliable. The evidence of three other witnesses was, to a greater or lesser extent inconsistent, contradictory, unreliable and incredible and the evidence of one other was at least in part dishonest. Their evidence, individually and collectively, provided no credible support for the Claimant's claim.
Judge Butler considered the witness evidence from the First and Second Defendants, which by contrast to that of the Claimant was impressive. Having regard to his duty to apply the burden and standard of proof appropriately, he was driven to the conclusion that the Claimant had failed to discharge the burden of proof in his claim against the Second Defendant and it should be dismissed. It followed inevitably that his claim against the club, also failed and should be dismissed.
Judge Butler would however address the issue of vicarious liability.
The First Defendant argued that the alleged assaults could not fairly and properly be regarded as being closely connected with the Second Defendant's employment because the club did not create or enhance the risk of that kind of behaviour occurring to the Claimant or any other apprentice. The club conferred no special authority on the professional players. The apprentices looked up to them as role models but this did not amount to the conferring of a power over them. Judge Butler referred to Wilson v Exel UK Limited [2010] CSIH 35 where the Scottish Court of Session decided that it was not enough to bring home vicarious liability that the acts were committed in the employer's premises during the hours of work, the mere opportunity to commit them having been provided by the fact of employment, where the employee's behaviour was an unrelated and independent venture of his own, that is to say a personal matter, rather than a matter connected to his authorised duties. Judge Butler found that the Second Defendant even as the player designated as club captain, had no express or implied power or duty or discretion conferred upon him by the club to train, discipline or chastise the apprentices. The First Defendant also relied on Mohamud v W M Morrisons Supermarkets PLC [2014] EWCA Civ 116, a decision of the Court of Appeal in which a violent unprovoked attack by a petrol station attendant employed by the Defendant was held not to give rise to vicarious liability. In Graham v Commercial [2015] EWCA Civ 47, the facts were that a person described as a "co-employee" with no apparent distinction in status between the wrongdoer and the victim, had used a cigarette lighter in the vicinity of the victim whose overalls had been sprinkled with a thinning agent and a fire started which caused serious injury. The wrongdoer's conduct was held to be similar to that of the wrongdoer in Wilson. The case fell into the category of cases in which it was inappropriate to impose vicarious liability.
Therefore even if Judge Butler had found that the Claimant had proved his case against the Second Defendant, he would have found that he had failed to prove it against the First Defendant, that was to say that he had failed to establish his entitlement to hold the club vicariously liable for the Second Defendant's tortious conduct.