TVZ AND OTHERS V MANCHESTER CITY FOOTBALL CLUB [2022] EWHC 7 (QB)
FACTS :-
Eight claimants sought compensation for sexual abuse perpetrated by Barry Bennell (“Bennell”) in the early 1980’s when they were aged between 10 and 14 and playing for football teams coached by Bennell. They say Bennell was working for the defendant (“MCFC”) and that it is liable for his conduct. In each case the Claimant is required to prove that Bennell abused him. Beyond that, the issues were:
(1) Whether the claim should be dismissed because it had been brought outside the 3-year time limit for personal injury claims
(2) If not, whether MCFC was responsible in law for the abuse (“vicarious liability”)
JUDGEMENT:-
Mr Justice Johnson said that MCFC did not challenge their accounts of what Bennell did to them. Their accounts were consistent with each other and with other known facts. Bennell had been convicted of offences against six of the Claimants. Four of the claimants gave evidence in the criminal proceedings. Bennell had been convicted, on 5 separate occasions of various offences against children.
The Claimants alleged that Bennell was engaged by MCFC as a scout and coach, that in the course of those duties he ran feeder teams for MCFC, providing a source for future recruitment by MCFC, that each of the Claimants played for one or more of these teams, and that in the course of his duties for MCFC Bennell abused each of the Claimants. MCFC was therefore vicariously liable for Bennell’s torts. Each claimant recognised that his claim was not started within the required time limit (which expired on his 21st birthday). Each Claimant said that it was equitable to disapply the time limit because he had a good reason for the delay and the trial could be fairly determined.
Johnson set out the brief summary details of each pleaded case. He then considered the position of MCFC and its background. It was common ground that Bennell was a scout for MCFC from about 1975. Bennell said that he stopped in 1978 or 1979. The Claimants say that he remained as MCFC’s scout throughout the period when they were abused by him (so until at least late 1984). Bennell was, during the late 1970s and early 1980s, involved in the running and/or coaching of a number of boys’ football teams. He regularly had boys, individually and in groups, to stay at his home.
It was common ground that Bennell was not, at any stage, an employee of MCFC.
In about 2016 MCFC instructed Pinsent Masons LLP and Jane Mulcahy QC to carry out a review into the parameters of Bennell’s relationship with MCFC” (“the Mulcahy review”). The report of the Mulcahy review was published on 17 March 2021. The MCFC then launched the “Manchester City FC Survivors’ Scheme” to offer compensation as an alternative pathway to court litigation for the resolution of legal claims they might have against the Club.
Johnson J said that the Scheme was intended to operate as an alternative dispute resolution methodology, and as such it did not seek to determine MCFC’s liability for the abuse suffered by any of the survivors that made a claim under the Scheme. 64 individuals had received redress payments under the Scheme. The Claimants had not applied for payments under the Scheme. They maintained that MCFC was vicariously liable for Bennell’s actions, and that they were entitled to damages assessed on common law principles, rather than the more limited payments that would be made under the Scheme. Moreover, the Scheme only came into effect after they had instructed lawyers and incurred significant legal costs which would not be recoverable under the Scheme.
Johnson J considered the evidence around Bennell’s engagement with MCFC. Bennell had actually given evidence from prison by video link. He denied that MCFC had anything to do with the way he ran his teams, although he admitted to a connection. Johnson J said that there were inconsistencies in his evidence. A copy of the business card that Bennell provided to the parents of boys that he sought to recruit to his teams was produced by a number of witnesses. The card was in MCFC’s sky blue colour and held him out as MCFC’s representative. Some of the teams that he had managed were regarded as MCFC’s “feeder” / “junior”/ “nursery” sides. There was also evidence that Bennell was invited into MCFC grounds to coach young players.
Limitation
There was then evidence given as to the impact of delay in relation to limitation. A partner in the Defendant’s firm gave evidence about a number of individuals who might have been able to provide evidence if these proceedings had been brought within the time limit.
Johnson J turned to the issue of whether the limitation time limits should be disapplied and considered the provisions of the Limitation Act 1980, in particular the provisions of Section 33(3). He then considered the parties’ submissions and the circumstances of the individual cases.
Johnson J would accept the joint psychiatric evidence that each claimant could have brought a claim within time. Each Claimant knew that he had been abused. They all knew (by the time of the expiry of the time limit) that this was wrong. None of them suffered from dissociative amnesia. There was no “date of knowledge” argument under section 14 of the 1980 Act. However, none of the Claimants consciously or capriciously delayed the issue of proceedings. The abuse and its consequences were, themselves, significant factors in the Claimants’ delay in bringing proceedings. In each of the cases the claimant had for many years either told nobody about the abuse or had only told a tiny number of people who he trusted. The present cases were instances of the tort inhibiting complaint, report, or suit.
Johnson J considered that each of the Claimants has a good and cogent explanation for the delay in bringing proceedings. If there was no significant impact on the cogency of the evidence, it would be fair to MCFC to face these claims, and Johnson J would, in each case, exercise the power under section 33 in the claimant’s favour to disapply the time limit.
Johnson J now turned to the cogency of the evidence: Each case depended to a large extent, on the oral testimony of witnesses given decades after the events in question. Human memory was inherently unreliable.
The impact of delay on the evidence could conveniently be considered by reference to the three issues in each of the cases - whether the abuse occurred, whether MCFC was vicariously liable for that abuse, and quantum.
So far as the question of whether the abuse occurred, all the primary witnesses had given evidence: the Claimants and Bennell. It had not been suggested that any other evidence would have been available if the claims had been brought earlier. The passage of time had had an impact on the quality of the evidence, but the issue was not one which depended on fine details of individual recollection. There was no scope for mistake or misunderstanding, and very little scope for fallibility of memory, on the fundamental question of whether the abuse occurred. In these circumstances, Johnson J did not consider that the passage of time had caused any real risk of prejudice to MCFC on this issue. Having not challenged the Claimants’ accounts, it was not open to MCFC now to suggest the abuse did not occur, and it would not have been open to it to do so if the claims had been brought in time.
So far as the consequences of the abuse were concerned, the experts had agreed that there were bound to be greater difficulties in this respect when dealing with allegations that related to events some 30 years ago because memory was often not reliable over such long periods of time and there might be problems with reattribution and confirmation bias. Important documentation was missing that the experts would have liked to see. Accordingly, there had, in each of the claims, been some impact on the cogency of the evidence relating to quantum as a result of the delay. But this was relatively marginal. In all cases there remained a significant body of evidence, including the evidence of the claimants, and the medical records, and the evidence of the medical experts.
In one sense the delay had improved the evidence in relation to quantum. If these claims had been brought in time, then it would have been necessary to make a prognosis, forecasting how the abuse would impact on the claimants’ future lives. A consequence of the delay is that there is a much greater retrospective component to the assessment - it is possible to look back over 35 years of lived experiences (with, in some cases, documentary support) to see how, in fact, the abuse had an impact.
Accordingly, leaving aside the question of vicarious liability, the extensive period of time which had passed since the time limits expired had not had a very significant impact on the cogency of the evidence. Johnson J considered that it would be equitable to disapply the time limits.
However, that still left the issue of vicarious liability. That issue was highly fact sensitive, and its resolution was not entirely straightforward. There was now no clear contemporaneous documentary record of the relationship between MCFC and Bennell. So far as documents existed, they were fragmentary, incomplete, and of limited assistance. So far as documents had been destroyed or mislaid, Johnson J did not consider that was due to any irresponsibility on the part of MCFC. If the claim had been brought in time, then it was likely that there would have been a much more extensive matrix of evidence on these matters.
Johnson J did not consider that the fact that the Claimants could have applied for compensation under MCFC’s compensation scheme was a factor that weighed against them, or in MCFC’s favour, in determining whether the time-limit should be disapplied.
Johnson J did not therefore consider that it was equitable to disapply the time limit. The claims would be dismissed.
Vicarious liability
However, if he was wrong on limitation, Johnson J would consider the issue of vicarious liability. He considered the parties’ submissions and the legal principles. This classic and deceptively simple test for vicarious liability involved two stages. The first stage concerned the relationship between the defendant and the tortfeasor - there had to be a relationship of master and servant. The second stage concerned the connection between the tort and the servant’s duties - whether the tort occurred in the course of the servant’s employment. Johnson J considered the judgment in DSN v Blackpool Football Club Limited [2020] EWHC 595 8QB where the court had found that a football club was vicariously liable for the abuse perpetrated by a scout. That decision was reversed by the Court of Appeal in DSN v Blackpool Football Club [2021] EWCA Civ 1352.
Johnson J considered situations in which there had been vicarious liability, and those in which there was no vicarious liability. He then set out his methodology for ascertaining whether MCFC were vicariously liable for Bennell’s abuse.
The respective motivations of the parties to the relationship did not involve ties of obedience and control. It was open to either side to terminate the relationship at any point. MCFC did not have any right to control how Bennell carried out his scouting activities. It was up to him who he recommended to MCFC and how he identified gifted young players. In practice, Bennell used his status as a scout to bolster his growing and largely self-promoted reputation as someone who had connections with football clubs, particularly MCFC, and who could provide young boys with a potential route to a professional footballing career. The evidence showed that Bennell stopped being a scout in about 1978/79, and by November 1979 at the latest (which was before the period covered by any of these claims).
The compensation scheme established by MCFC demonstrated that MCFC considered it appropriate to make ex gratia payments to victims of Bennell’s abuse. It was, however, established without admission as to liability, and Johnson J did not consider that the fact or content of the scheme threw further light on the nature of the relationship between Bennell and MCFC.
There was no contract between Bennell and MCFC. He was therefore neither an employee nor an independent contractor. It followed that Stage 1 of the test could not be satisfied on the simple basis that Bennell was an employee of MCFC. The fact that he was not an employee did not preclude the possibility of vicarious liability – he could be “akin” to an employee. However, Bennell was in full-time paid employment (for at least part of the relevant period) working in a children’s home. His footballing activities were voluntary and undertaken in his spare time. Second, Bennell had a portfolio of footballing activities, some of which had nothing to do with MCFC. Third, Bennell took the financial risk of the footballing activities that he arranged. Fourth, there was very little evidence of MCFC exercising control over Bennell’s activities. Fifth, an employment relationship involved an implied obligation to comply with an employer’s lawful and reasonable instructions. In relationships that were akin to employment, something similar could be identified. Here, there was 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. 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. Consistent with the lack of any control by MCFC over how Bennell ran his teams, there was no evidence that he was subject to any form of disciplinary code. 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. For all these reasons, Bennell was not in a relationship with MCFC that was 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.
However, Johnson J said that if he was wrong and this was a “doubtful” case, then he would go on to consider the five incidents identified by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56.
The first incident was “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.” There was 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.
The second incident was “the tort will have been committed as a result of activity being taken by the employee on behalf of the employer.” However, a simple factual causation test was not, though, sufficient for the imposition of vicarious liability. If a more focussed approach was applied to “activity” so that it was more closely connected with the abuse, then the incident was not satisfied. That was 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 was no evidence that it even knew that Bennell was doing so.
The third incident was “the employee’s activity is likely to be part of the business activity of the employer.” If it was having 11–13-year-old boys to stay overnight, then that had nothing to do with MCFC’s business activities.
The fourth incident was “the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee.” There was not a substantial direct and inherent risk of sexual abuse from football coaching.
The fifth incident was “the employee will, to a greater or lesser degree, have been under the control of the employer.” Johnson J did not consider that the Claimants had shown that Bennell was subject to even a vestigial degree of control by MCFC, beyond that which MCFC could impose over an independent contractor.
Having considered the application of each of Lord Phillips’ five incidents to the circumstances of this case, Johnson J did not consider that they indicated that the relationship between Bennell and MCFC was akin to employment. It followed that the Claimants had not established the first stage of the test for vicarious liability.
Stage 2 of the vicarious liability test did not arise, because Stage 1 had not been established. Johnson J would however, consider Stage 2.
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.
Nevertheless, there was a world of difference between the retention of a football coach and a teacher at a residential school. The latter was responsible, as an inherent part of the job, for the welfare of children in the school’s care for 24 hours a day. They lived in the same accommodation as part of their job. The abuse of children who had been placed in such a teacher’s care was an abnegation of the positive duty allocated to the teacher by his employer.
Nothing, on the evidence, suggested 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.
Quantum
General damages
Finally, Johnson J came to the issue of compensation, in case his conclusions on limitation and vicarious liability were both wrong. Johnson J considered the medical literature on child abuse and the expert medical evidence. He then turned to the general damages award for pain, suffering and loss of amenity and aggravated damages.
Johnson J would make separate awards for (1) the abuse itself, including its immediate consequences, and (2) the longer-term psychiatric disorder caused by the abuse. He did not consider it was appropriate to make a separate award of aggravated damages.
Johnson J explained that there were different strands to the non-monetary losses. There were the psychiatric disorders that each Claimant sustained. That was addressed by an award of general damages for what was conventionally termed “pain, suffering and loss of amenity.” The Judicial College published guidelines which set out the factors that should be considered, and the range of awards that are appropriate for different types of injury. For severe cases of PTSD, the guideline bracket was £56,180 - £94,470. For moderately severe cases, the guideline bracket was £21,730 - £56,180.
In assessing the appropriate award for pain, suffering and loss of amenity, Johnson J would leave out of account the compensation that was necessary for the individual acts of abuse themselves, and the immediate consequences of the abuse. Aside from the compensation for pain, suffering and loss of amenity that was suffered by the Claimants as a result of the long-term psychiatric disorders that they had sustained, they were entitled to compensation for the assaults and batteries themselves that constituted the abuse, and the psychological impact of the abuse at the time it was perpetuated.
Each individual sexual assault perpetuated by Bennell was (irrespective of the consequences) in and of itself a tort which merited an award of (at least nominal) damages. In breach of privacy cases, substantial (so not just nominal) damages could be awarded for the loss of autonomy occasioned by the breach itself, irrespective of any distress - see Gulati v MGN Ltd [2015] EWHC 1482 (Ch). It was not easy to see why the law should afford less protection to bodily autonomy and integrity than privacy and autonomy over personal information, or why it should value the protection of children from sexual abuse less than the protection of celebrities from breaches of privacy.
In Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871 [the Court of Appeal upheld an award of the Employment Tribunal in a discrimination case, which comprised separate sums for injury to feelings, psychiatric damage, and aggravated damages. As to injury to feelings, the Court set out three brackets, which ranged from £900 to £45,600.
In Hugh Martins v Mohammed Choudhary [2007] EWCA Civ 1379 the court made separate awards for injury to feelings and psychiatric damage (but no separate award of aggravated damages) in a harassment case.
These authorities did not lay down a blanket inflexible rule that there should be a single award for all non-pecuniary losses. The appropriate way of structuring an award would depend on the particular circumstances of each case, always taking account of the need to ensure full compensation but to avoid double recovery and to explain how the award had been calculated. In a straightforward assault case where the injuries were minor, a single award might be appropriate. In cases where the only loss was injury to feelings then, again, it might be appropriate to make a single award to include any element that might otherwise be covered by aggravated damages.
In these cases, Johnson J said that damages for the abuse itself, and damages for any psychiatric disorder that flowed from it, were more appropriately assessed as separate awards to reflect what were two conceptually different forms of loss which could be distinctly addressed.
It was therefore helpful to separate out the two different strands when assessing damages. Accordingly, Johnson J would make separate awards for (1) the abuse itself, including its immediate consequences, and (2) the longer-term psychiatric disorder caused by the abuse. This meant that the (total) award might be substantially higher than the top of the applicable Judicial College bracket, but that was because, as well as the psychiatric disorder (which might in itself merit an award towards the top of an applicable bracket), there is the immediate injury to feelings occasioned by the abuse.
Johnson J would not make a separate award for aggravated damages.
He would also make a single award to cover all incidents of abuse.
In making separate awards for the abuse, and for pain, suffering and loss of amenity, Johnson J had taken care to avoid double counting.
Compensation for loss of earnings and pension as a professional footballer
In six of the claims, damages were sought for loss of earnings and pension as a professional footballer. Johnson J referred to the evidence produced by Nick Harris, a sportswriter, researcher, and analyst and Keith Carter, an employment expert. Johnson J would accept and adopt their figures. Johnson J referred to the case of Allied Maples Group Limited v Simmons and Simmons [1995] 1 WLR 1602 where the Court of Appeal held that where a Claimant’s loss depended on future uncertain events, it fell to be quantified on the basis of the court’s assessment of the chance of those events materializing.
Johnson J was satisfied on the balance of probabilities that the abuse did preclude any chance the Claimants otherwise would have had of a professional career. In each case, their enjoyment of and commitment to the game was considerably diminished.
In these cases, it was not necessary for the Claimants to show, on the balance of probabilities, that they would have become a professional footballer, only that they had a lost a (substantial) chance of doing so. Johnson J considered the different levels of the route towards becoming a professional player. Each of the claimants had progressed through most or all of early stages, and some had progressed further. On a purely statistical basis, therefore, the prospects of progressing from the amateur children’s feeder teams to a professional contract were around 1 in 8.A professional contract was not enough to give rise to the substantial earnings claims that were advanced. On the basis that the first two tiers of the football league accounted for less than 50% of all the teams in the football league, and that the first team squad might typically account for around 50% of the professional players in a league club, the prospects appeared to be no better than somewhere between 25%-50%. Only 15% of apprentices were still in professional football after the age of 20. Consequently, the overall statistical prospects of progressing from level 1 through all the further levels might be somewhere between 1 in 32 to 1 in 16. There was then the risk of early termination of a career, for example through injury. Moreover, the assessment of the chances of a 13-year-old footballer, however talented they might appear at that age, progressing all the way through to a professional contract and regular first team appearances in a first or second tier club was highly speculative.
Accordingly, Johnson J would dismiss the claims for a lost chance of a career as a professional footballer in all cases save for DDG and LDX.
In addressing the claims of DDG and LDX, Johnson J would accept the Claimant’s methodology. That was to assess the earnings that would have been achieved in a second tier club, then deduct the actual earnings, and then multiply by the assessed level of chance.
(1) TVZ’s claim
The experts agreed that TVZ had symptoms of chronic complex PTSD. Johnson J accepted that they had been present (albeit fluctuating in intensity) throughout most of his adult life. TVZ also had a recurrent depressive disorder, with episodes of mild to moderate severity.
In relation to general damages for abuse, the case came within the scope of the most serious category. Johnson J would award £75,000.
In relation to general damages for pain, suffering and loss of amenity, Johnson J would award £65,000.
Travel costs were agreed in the sum of £860. There was no award for loss of earnings or pension.
There was an award of £20,000 for handicap in the job market.
Future treatment and future travel (for treatment) - £5,760.
Interest: £11,047 on general damages (2% x 4 x £140,000).
Interest of £86 on past pecuniary loss (10% x £860).
Total award: £177,753.
(2) JVF’s claim
The abuse went on over a 3-year period. There were over 100 incidents of serious sexual assault, and one incident of attempted rape (penetration of anus).
Johnson J would accept Dr Mogg’s opinion that JVF had suffered symptoms of PTSD since around the time of the abuse. The symptoms had continued over many years, getting worse since disclosure. There had been some impact on work and relationships. Aside from the PTSD, the experts agreed that there had been two mild episodes of depression.
General damages for abuse - £40,000.
General damages for pain, suffering and loss of amenity - £50,000.
No award for loss of chance of a football career / pension loss.
Loss of earnings / Handicap on the labour market. JVF had been in employment for most of his life. The only tangible missed opportunity was when his friend offered him employment – no award.
Past travel costs -£800.
Future treatment and travel - £5,120.
Interest - £5,523 on general damages (2% x 3.1 x £90,000). £80 on past pecuniary loss (10% x £800).
Total award: £101,523.
(3) DDG’s claim
DDG’s abuse was sexually assaulted by Bennell for around 4 years, increasing in frequency and severity over time. There were 2 or 3 instances of offences of rape. He had over many years, abused drugs and alcohol. Johnson J accepted that that DDG did not successfully compartmentalise the abuse, and that he used alcohol and drugs as a way of masking his problems. He was also satisfied that the abuse was a substantial cause of the episodic nature of DDG’s employment. The overwhelming cause of his mental health problems was the abuse that DDG suffered.
General damages for abuse - £65,000.
General damages for pain, suffering and loss of amenity - DDG had suffered from chronic PTSD, as well as mixed anxiety and depressive disorder and alcohol dependence. This was all due to the abuse. The case came towards the top of the Judicial College’s bracket for severe PTSD - £85,000.
Past travel costs - £840
Loss of earnings - even amongst his contemporaries who were accomplished footballers, there was considerable evidence that DDG showed an exceptional level of talent. He also showed that, notwithstanding the abuse, he was able to progress to associate schoolboy status, and thereafter to pursue professional opportunities. A precise statistical calculation was not possible but taking account of all the contingencies, the lost chance was in the region of 10% - £113,521.
Pension loss - assuming a 10% lost chance - £6,503.
Future treatment / travel -£4,960.
Interest - £9,773 on general damages - £11,436 on past pecuniary loss
The total award was therefore £297,033.
(4) FTS’s claim
Bennell had been convicted of 4 counts of indecent assault committed against FTS. The abuse went on over 2 years from the age of 12 to 14. It involved a large number of serious sexual assaults. It happened every time that FTS stayed at Bennell’s home, which was every weekend when he was playing football. The background to FTS’s case was complex, and he would have been vulnerable to sustaining a psychiatric disorder (and would have developed a personality disorder) in any event.
General damages for abuse - £40,000
General damages for pain, suffering and loss of amenity – the case fell within the moderately severe bracket of the Judicial College’s guidelines on PTSD - £35,000.
Past travel costs - £840.
Future treatment and travel - £4,650
Interest: £4,603 on general damages - £84 on past pecuniary loss
Total award - £85,177.
(5) LDX’s claim
The abuse: LDX was sexually assaulted by Bennell on at least 100 occasions. Johnson J accepted that LDX had suffered chronic mild PTSD and chronic low mood (dysthymia) over many years which had been exacerbated since disclosure (resulting in a moderate episode of clinical depression).
General damages for abuse: The nature and duration of the abuse (and the age of LDX at the time), and the psychological impact on LDX, were all similar to the case of JVF - £40,000.
General damages for pain, suffering and loss of amenity - £60,000.
Loss of chance of a football career: LDX was in demand as an associate schoolboy and an apprentice. Johnson J considered that LDX would have had a real prospect of securing a contract at a first tier club, and certainly a second tier club. That was perhaps fairly reflected overall by a 50% chance of the latter. However, there were further questions and contingencies best reflected by a reduction in the chance of a full career in a second-tier club by a half, so from 50% to 25% - £347,587.
Travel costs - £70.
Pension loss - £26,400.
Handicap on the labour market – if LDX had to leave his current employment for any reason, then the ongoing effects of the abuse were such that it was likely that it would take him longer to secure new employment than would otherwise be the case - £20,000.
Treatment/future travel - £25,580.
Interest - £6,137 on general damages - interest of £34,766 on past pecuniary loss. Total award of interest - £40,903.
Total award - £560,540.
(6) EJP’s claim
The abuse occurred from 1981/82 to 1983 and it included six incidents of rape. He had suffered from symptoms of PTSD since he was abused at the age of 11, worsening significantly in 2016 when he disclosed the abuse, and continuing to the present day.
General damages for abuse - £40,000. Although there were differences, the overall scale and nature of the abuse, the period over which it was perpetrated, and the psychological impact, was similar to that in the cases of JVF, FTS and LDX.
General damages for pain, suffering and loss of amenity - the case fell towards the lower end of the Judicial College guidelines for cases of severe PTSD - £60,000.
Travel - £60.
Future treatment and travel - £4,960
Interest - £6,137 on general damages - interest of £6 on past pecuniary loss - £6,143.
Total award - £111,163.
(7) HFT’s claim
HFT was subjected to repeated (several hundred) serious sexual assaults between the ages of about 9 and 14. There were many incidents of rape.
General damages for abuse - £70,000.
General damages for pain, suffering and loss of amenity - £50,000.
Past travel - £250.
Interest -£7,364 on general damages - £25 on past pecuniary loss - £7,389.
Total award - £127,639.
(8) KHT’s claim
KHT’s was at the less severe end of the spectrum presented by these 8 claims and amounted to 2 separate incidents. The experts agreed that KHT had suffered a deterioration in his mental health following disclosure of abuse in 2017. His psychiatric symptoms prior to 2017 had present throughout, although prior to 2017 they were mild, becoming much more severe in 2017 following disclosure. They fulfilled the diagnostic criteria for PTSD.
General damages for abuse - £10,000
General damages for pain, suffering and loss of amenity - £27,500
Travel costs - £370
Treatment and travel expenses - £6,080
Interest - £2,301 on general damages and £37 on past pecuniary loss - £2,338.
Total award - £46,288
FACTS :-
Eight claimants sought compensation for sexual abuse perpetrated by Barry Bennell (“Bennell”) in the early 1980’s when they were aged between 10 and 14 and playing for football teams coached by Bennell. They say Bennell was working for the defendant (“MCFC”) and that it is liable for his conduct. In each case the Claimant is required to prove that Bennell abused him. Beyond that, the issues were:
(1) Whether the claim should be dismissed because it had been brought outside the 3-year time limit for personal injury claims
(2) If not, whether MCFC was responsible in law for the abuse (“vicarious liability”)
JUDGEMENT:-
Mr Justice Johnson said that MCFC did not challenge their accounts of what Bennell did to them. Their accounts were consistent with each other and with other known facts. Bennell had been convicted of offences against six of the Claimants. Four of the claimants gave evidence in the criminal proceedings. Bennell had been convicted, on 5 separate occasions of various offences against children.
The Claimants alleged that Bennell was engaged by MCFC as a scout and coach, that in the course of those duties he ran feeder teams for MCFC, providing a source for future recruitment by MCFC, that each of the Claimants played for one or more of these teams, and that in the course of his duties for MCFC Bennell abused each of the Claimants. MCFC was therefore vicariously liable for Bennell’s torts. Each claimant recognised that his claim was not started within the required time limit (which expired on his 21st birthday). Each Claimant said that it was equitable to disapply the time limit because he had a good reason for the delay and the trial could be fairly determined.
Johnson set out the brief summary details of each pleaded case. He then considered the position of MCFC and its background. It was common ground that Bennell was a scout for MCFC from about 1975. Bennell said that he stopped in 1978 or 1979. The Claimants say that he remained as MCFC’s scout throughout the period when they were abused by him (so until at least late 1984). Bennell was, during the late 1970s and early 1980s, involved in the running and/or coaching of a number of boys’ football teams. He regularly had boys, individually and in groups, to stay at his home.
It was common ground that Bennell was not, at any stage, an employee of MCFC.
In about 2016 MCFC instructed Pinsent Masons LLP and Jane Mulcahy QC to carry out a review into the parameters of Bennell’s relationship with MCFC” (“the Mulcahy review”). The report of the Mulcahy review was published on 17 March 2021. The MCFC then launched the “Manchester City FC Survivors’ Scheme” to offer compensation as an alternative pathway to court litigation for the resolution of legal claims they might have against the Club.
Johnson J said that the Scheme was intended to operate as an alternative dispute resolution methodology, and as such it did not seek to determine MCFC’s liability for the abuse suffered by any of the survivors that made a claim under the Scheme. 64 individuals had received redress payments under the Scheme. The Claimants had not applied for payments under the Scheme. They maintained that MCFC was vicariously liable for Bennell’s actions, and that they were entitled to damages assessed on common law principles, rather than the more limited payments that would be made under the Scheme. Moreover, the Scheme only came into effect after they had instructed lawyers and incurred significant legal costs which would not be recoverable under the Scheme.
Johnson J considered the evidence around Bennell’s engagement with MCFC. Bennell had actually given evidence from prison by video link. He denied that MCFC had anything to do with the way he ran his teams, although he admitted to a connection. Johnson J said that there were inconsistencies in his evidence. A copy of the business card that Bennell provided to the parents of boys that he sought to recruit to his teams was produced by a number of witnesses. The card was in MCFC’s sky blue colour and held him out as MCFC’s representative. Some of the teams that he had managed were regarded as MCFC’s “feeder” / “junior”/ “nursery” sides. There was also evidence that Bennell was invited into MCFC grounds to coach young players.
Limitation
There was then evidence given as to the impact of delay in relation to limitation. A partner in the Defendant’s firm gave evidence about a number of individuals who might have been able to provide evidence if these proceedings had been brought within the time limit.
Johnson J turned to the issue of whether the limitation time limits should be disapplied and considered the provisions of the Limitation Act 1980, in particular the provisions of Section 33(3). He then considered the parties’ submissions and the circumstances of the individual cases.
Johnson J would accept the joint psychiatric evidence that each claimant could have brought a claim within time. Each Claimant knew that he had been abused. They all knew (by the time of the expiry of the time limit) that this was wrong. None of them suffered from dissociative amnesia. There was no “date of knowledge” argument under section 14 of the 1980 Act. However, none of the Claimants consciously or capriciously delayed the issue of proceedings. The abuse and its consequences were, themselves, significant factors in the Claimants’ delay in bringing proceedings. In each of the cases the claimant had for many years either told nobody about the abuse or had only told a tiny number of people who he trusted. The present cases were instances of the tort inhibiting complaint, report, or suit.
Johnson J considered that each of the Claimants has a good and cogent explanation for the delay in bringing proceedings. If there was no significant impact on the cogency of the evidence, it would be fair to MCFC to face these claims, and Johnson J would, in each case, exercise the power under section 33 in the claimant’s favour to disapply the time limit.
Johnson J now turned to the cogency of the evidence: Each case depended to a large extent, on the oral testimony of witnesses given decades after the events in question. Human memory was inherently unreliable.
The impact of delay on the evidence could conveniently be considered by reference to the three issues in each of the cases - whether the abuse occurred, whether MCFC was vicariously liable for that abuse, and quantum.
So far as the question of whether the abuse occurred, all the primary witnesses had given evidence: the Claimants and Bennell. It had not been suggested that any other evidence would have been available if the claims had been brought earlier. The passage of time had had an impact on the quality of the evidence, but the issue was not one which depended on fine details of individual recollection. There was no scope for mistake or misunderstanding, and very little scope for fallibility of memory, on the fundamental question of whether the abuse occurred. In these circumstances, Johnson J did not consider that the passage of time had caused any real risk of prejudice to MCFC on this issue. Having not challenged the Claimants’ accounts, it was not open to MCFC now to suggest the abuse did not occur, and it would not have been open to it to do so if the claims had been brought in time.
So far as the consequences of the abuse were concerned, the experts had agreed that there were bound to be greater difficulties in this respect when dealing with allegations that related to events some 30 years ago because memory was often not reliable over such long periods of time and there might be problems with reattribution and confirmation bias. Important documentation was missing that the experts would have liked to see. Accordingly, there had, in each of the claims, been some impact on the cogency of the evidence relating to quantum as a result of the delay. But this was relatively marginal. In all cases there remained a significant body of evidence, including the evidence of the claimants, and the medical records, and the evidence of the medical experts.
In one sense the delay had improved the evidence in relation to quantum. If these claims had been brought in time, then it would have been necessary to make a prognosis, forecasting how the abuse would impact on the claimants’ future lives. A consequence of the delay is that there is a much greater retrospective component to the assessment - it is possible to look back over 35 years of lived experiences (with, in some cases, documentary support) to see how, in fact, the abuse had an impact.
Accordingly, leaving aside the question of vicarious liability, the extensive period of time which had passed since the time limits expired had not had a very significant impact on the cogency of the evidence. Johnson J considered that it would be equitable to disapply the time limits.
However, that still left the issue of vicarious liability. That issue was highly fact sensitive, and its resolution was not entirely straightforward. There was now no clear contemporaneous documentary record of the relationship between MCFC and Bennell. So far as documents existed, they were fragmentary, incomplete, and of limited assistance. So far as documents had been destroyed or mislaid, Johnson J did not consider that was due to any irresponsibility on the part of MCFC. If the claim had been brought in time, then it was likely that there would have been a much more extensive matrix of evidence on these matters.
Johnson J did not consider that the fact that the Claimants could have applied for compensation under MCFC’s compensation scheme was a factor that weighed against them, or in MCFC’s favour, in determining whether the time-limit should be disapplied.
Johnson J did not therefore consider that it was equitable to disapply the time limit. The claims would be dismissed.
Vicarious liability
However, if he was wrong on limitation, Johnson J would consider the issue of vicarious liability. He considered the parties’ submissions and the legal principles. This classic and deceptively simple test for vicarious liability involved two stages. The first stage concerned the relationship between the defendant and the tortfeasor - there had to be a relationship of master and servant. The second stage concerned the connection between the tort and the servant’s duties - whether the tort occurred in the course of the servant’s employment. Johnson J considered the judgment in DSN v Blackpool Football Club Limited [2020] EWHC 595 8QB where the court had found that a football club was vicariously liable for the abuse perpetrated by a scout. That decision was reversed by the Court of Appeal in DSN v Blackpool Football Club [2021] EWCA Civ 1352.
Johnson J considered situations in which there had been vicarious liability, and those in which there was no vicarious liability. He then set out his methodology for ascertaining whether MCFC were vicariously liable for Bennell’s abuse.
The respective motivations of the parties to the relationship did not involve ties of obedience and control. It was open to either side to terminate the relationship at any point. MCFC did not have any right to control how Bennell carried out his scouting activities. It was up to him who he recommended to MCFC and how he identified gifted young players. In practice, Bennell used his status as a scout to bolster his growing and largely self-promoted reputation as someone who had connections with football clubs, particularly MCFC, and who could provide young boys with a potential route to a professional footballing career. The evidence showed that Bennell stopped being a scout in about 1978/79, and by November 1979 at the latest (which was before the period covered by any of these claims).
The compensation scheme established by MCFC demonstrated that MCFC considered it appropriate to make ex gratia payments to victims of Bennell’s abuse. It was, however, established without admission as to liability, and Johnson J did not consider that the fact or content of the scheme threw further light on the nature of the relationship between Bennell and MCFC.
There was no contract between Bennell and MCFC. He was therefore neither an employee nor an independent contractor. It followed that Stage 1 of the test could not be satisfied on the simple basis that Bennell was an employee of MCFC. The fact that he was not an employee did not preclude the possibility of vicarious liability – he could be “akin” to an employee. However, Bennell was in full-time paid employment (for at least part of the relevant period) working in a children’s home. His footballing activities were voluntary and undertaken in his spare time. Second, Bennell had a portfolio of footballing activities, some of which had nothing to do with MCFC. Third, Bennell took the financial risk of the footballing activities that he arranged. Fourth, there was very little evidence of MCFC exercising control over Bennell’s activities. Fifth, an employment relationship involved an implied obligation to comply with an employer’s lawful and reasonable instructions. In relationships that were akin to employment, something similar could be identified. Here, there was 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. 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. Consistent with the lack of any control by MCFC over how Bennell ran his teams, there was no evidence that he was subject to any form of disciplinary code. 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. For all these reasons, Bennell was not in a relationship with MCFC that was 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.
However, Johnson J said that if he was wrong and this was a “doubtful” case, then he would go on to consider the five incidents identified by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56.
The first incident was “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.” There was 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.
The second incident was “the tort will have been committed as a result of activity being taken by the employee on behalf of the employer.” However, a simple factual causation test was not, though, sufficient for the imposition of vicarious liability. If a more focussed approach was applied to “activity” so that it was more closely connected with the abuse, then the incident was not satisfied. That was 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 was no evidence that it even knew that Bennell was doing so.
The third incident was “the employee’s activity is likely to be part of the business activity of the employer.” If it was having 11–13-year-old boys to stay overnight, then that had nothing to do with MCFC’s business activities.
The fourth incident was “the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee.” There was not a substantial direct and inherent risk of sexual abuse from football coaching.
The fifth incident was “the employee will, to a greater or lesser degree, have been under the control of the employer.” Johnson J did not consider that the Claimants had shown that Bennell was subject to even a vestigial degree of control by MCFC, beyond that which MCFC could impose over an independent contractor.
Having considered the application of each of Lord Phillips’ five incidents to the circumstances of this case, Johnson J did not consider that they indicated that the relationship between Bennell and MCFC was akin to employment. It followed that the Claimants had not established the first stage of the test for vicarious liability.
Stage 2 of the vicarious liability test did not arise, because Stage 1 had not been established. Johnson J would however, consider Stage 2.
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.
Nevertheless, there was a world of difference between the retention of a football coach and a teacher at a residential school. The latter was responsible, as an inherent part of the job, for the welfare of children in the school’s care for 24 hours a day. They lived in the same accommodation as part of their job. The abuse of children who had been placed in such a teacher’s care was an abnegation of the positive duty allocated to the teacher by his employer.
Nothing, on the evidence, suggested 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.
Quantum
General damages
Finally, Johnson J came to the issue of compensation, in case his conclusions on limitation and vicarious liability were both wrong. Johnson J considered the medical literature on child abuse and the expert medical evidence. He then turned to the general damages award for pain, suffering and loss of amenity and aggravated damages.
Johnson J would make separate awards for (1) the abuse itself, including its immediate consequences, and (2) the longer-term psychiatric disorder caused by the abuse. He did not consider it was appropriate to make a separate award of aggravated damages.
Johnson J explained that there were different strands to the non-monetary losses. There were the psychiatric disorders that each Claimant sustained. That was addressed by an award of general damages for what was conventionally termed “pain, suffering and loss of amenity.” The Judicial College published guidelines which set out the factors that should be considered, and the range of awards that are appropriate for different types of injury. For severe cases of PTSD, the guideline bracket was £56,180 - £94,470. For moderately severe cases, the guideline bracket was £21,730 - £56,180.
In assessing the appropriate award for pain, suffering and loss of amenity, Johnson J would leave out of account the compensation that was necessary for the individual acts of abuse themselves, and the immediate consequences of the abuse. Aside from the compensation for pain, suffering and loss of amenity that was suffered by the Claimants as a result of the long-term psychiatric disorders that they had sustained, they were entitled to compensation for the assaults and batteries themselves that constituted the abuse, and the psychological impact of the abuse at the time it was perpetuated.
Each individual sexual assault perpetuated by Bennell was (irrespective of the consequences) in and of itself a tort which merited an award of (at least nominal) damages. In breach of privacy cases, substantial (so not just nominal) damages could be awarded for the loss of autonomy occasioned by the breach itself, irrespective of any distress - see Gulati v MGN Ltd [2015] EWHC 1482 (Ch). It was not easy to see why the law should afford less protection to bodily autonomy and integrity than privacy and autonomy over personal information, or why it should value the protection of children from sexual abuse less than the protection of celebrities from breaches of privacy.
In Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871 [the Court of Appeal upheld an award of the Employment Tribunal in a discrimination case, which comprised separate sums for injury to feelings, psychiatric damage, and aggravated damages. As to injury to feelings, the Court set out three brackets, which ranged from £900 to £45,600.
In Hugh Martins v Mohammed Choudhary [2007] EWCA Civ 1379 the court made separate awards for injury to feelings and psychiatric damage (but no separate award of aggravated damages) in a harassment case.
These authorities did not lay down a blanket inflexible rule that there should be a single award for all non-pecuniary losses. The appropriate way of structuring an award would depend on the particular circumstances of each case, always taking account of the need to ensure full compensation but to avoid double recovery and to explain how the award had been calculated. In a straightforward assault case where the injuries were minor, a single award might be appropriate. In cases where the only loss was injury to feelings then, again, it might be appropriate to make a single award to include any element that might otherwise be covered by aggravated damages.
In these cases, Johnson J said that damages for the abuse itself, and damages for any psychiatric disorder that flowed from it, were more appropriately assessed as separate awards to reflect what were two conceptually different forms of loss which could be distinctly addressed.
It was therefore helpful to separate out the two different strands when assessing damages. Accordingly, Johnson J would make separate awards for (1) the abuse itself, including its immediate consequences, and (2) the longer-term psychiatric disorder caused by the abuse. This meant that the (total) award might be substantially higher than the top of the applicable Judicial College bracket, but that was because, as well as the psychiatric disorder (which might in itself merit an award towards the top of an applicable bracket), there is the immediate injury to feelings occasioned by the abuse.
Johnson J would not make a separate award for aggravated damages.
He would also make a single award to cover all incidents of abuse.
In making separate awards for the abuse, and for pain, suffering and loss of amenity, Johnson J had taken care to avoid double counting.
Compensation for loss of earnings and pension as a professional footballer
In six of the claims, damages were sought for loss of earnings and pension as a professional footballer. Johnson J referred to the evidence produced by Nick Harris, a sportswriter, researcher, and analyst and Keith Carter, an employment expert. Johnson J would accept and adopt their figures. Johnson J referred to the case of Allied Maples Group Limited v Simmons and Simmons [1995] 1 WLR 1602 where the Court of Appeal held that where a Claimant’s loss depended on future uncertain events, it fell to be quantified on the basis of the court’s assessment of the chance of those events materializing.
Johnson J was satisfied on the balance of probabilities that the abuse did preclude any chance the Claimants otherwise would have had of a professional career. In each case, their enjoyment of and commitment to the game was considerably diminished.
In these cases, it was not necessary for the Claimants to show, on the balance of probabilities, that they would have become a professional footballer, only that they had a lost a (substantial) chance of doing so. Johnson J considered the different levels of the route towards becoming a professional player. Each of the claimants had progressed through most or all of early stages, and some had progressed further. On a purely statistical basis, therefore, the prospects of progressing from the amateur children’s feeder teams to a professional contract were around 1 in 8.A professional contract was not enough to give rise to the substantial earnings claims that were advanced. On the basis that the first two tiers of the football league accounted for less than 50% of all the teams in the football league, and that the first team squad might typically account for around 50% of the professional players in a league club, the prospects appeared to be no better than somewhere between 25%-50%. Only 15% of apprentices were still in professional football after the age of 20. Consequently, the overall statistical prospects of progressing from level 1 through all the further levels might be somewhere between 1 in 32 to 1 in 16. There was then the risk of early termination of a career, for example through injury. Moreover, the assessment of the chances of a 13-year-old footballer, however talented they might appear at that age, progressing all the way through to a professional contract and regular first team appearances in a first or second tier club was highly speculative.
Accordingly, Johnson J would dismiss the claims for a lost chance of a career as a professional footballer in all cases save for DDG and LDX.
In addressing the claims of DDG and LDX, Johnson J would accept the Claimant’s methodology. That was to assess the earnings that would have been achieved in a second tier club, then deduct the actual earnings, and then multiply by the assessed level of chance.
(1) TVZ’s claim
The experts agreed that TVZ had symptoms of chronic complex PTSD. Johnson J accepted that they had been present (albeit fluctuating in intensity) throughout most of his adult life. TVZ also had a recurrent depressive disorder, with episodes of mild to moderate severity.
In relation to general damages for abuse, the case came within the scope of the most serious category. Johnson J would award £75,000.
In relation to general damages for pain, suffering and loss of amenity, Johnson J would award £65,000.
Travel costs were agreed in the sum of £860. There was no award for loss of earnings or pension.
There was an award of £20,000 for handicap in the job market.
Future treatment and future travel (for treatment) - £5,760.
Interest: £11,047 on general damages (2% x 4 x £140,000).
Interest of £86 on past pecuniary loss (10% x £860).
Total award: £177,753.
(2) JVF’s claim
The abuse went on over a 3-year period. There were over 100 incidents of serious sexual assault, and one incident of attempted rape (penetration of anus).
Johnson J would accept Dr Mogg’s opinion that JVF had suffered symptoms of PTSD since around the time of the abuse. The symptoms had continued over many years, getting worse since disclosure. There had been some impact on work and relationships. Aside from the PTSD, the experts agreed that there had been two mild episodes of depression.
General damages for abuse - £40,000.
General damages for pain, suffering and loss of amenity - £50,000.
No award for loss of chance of a football career / pension loss.
Loss of earnings / Handicap on the labour market. JVF had been in employment for most of his life. The only tangible missed opportunity was when his friend offered him employment – no award.
Past travel costs -£800.
Future treatment and travel - £5,120.
Interest - £5,523 on general damages (2% x 3.1 x £90,000). £80 on past pecuniary loss (10% x £800).
Total award: £101,523.
(3) DDG’s claim
DDG’s abuse was sexually assaulted by Bennell for around 4 years, increasing in frequency and severity over time. There were 2 or 3 instances of offences of rape. He had over many years, abused drugs and alcohol. Johnson J accepted that that DDG did not successfully compartmentalise the abuse, and that he used alcohol and drugs as a way of masking his problems. He was also satisfied that the abuse was a substantial cause of the episodic nature of DDG’s employment. The overwhelming cause of his mental health problems was the abuse that DDG suffered.
General damages for abuse - £65,000.
General damages for pain, suffering and loss of amenity - DDG had suffered from chronic PTSD, as well as mixed anxiety and depressive disorder and alcohol dependence. This was all due to the abuse. The case came towards the top of the Judicial College’s bracket for severe PTSD - £85,000.
Past travel costs - £840
Loss of earnings - even amongst his contemporaries who were accomplished footballers, there was considerable evidence that DDG showed an exceptional level of talent. He also showed that, notwithstanding the abuse, he was able to progress to associate schoolboy status, and thereafter to pursue professional opportunities. A precise statistical calculation was not possible but taking account of all the contingencies, the lost chance was in the region of 10% - £113,521.
Pension loss - assuming a 10% lost chance - £6,503.
Future treatment / travel -£4,960.
Interest - £9,773 on general damages - £11,436 on past pecuniary loss
The total award was therefore £297,033.
(4) FTS’s claim
Bennell had been convicted of 4 counts of indecent assault committed against FTS. The abuse went on over 2 years from the age of 12 to 14. It involved a large number of serious sexual assaults. It happened every time that FTS stayed at Bennell’s home, which was every weekend when he was playing football. The background to FTS’s case was complex, and he would have been vulnerable to sustaining a psychiatric disorder (and would have developed a personality disorder) in any event.
General damages for abuse - £40,000
General damages for pain, suffering and loss of amenity – the case fell within the moderately severe bracket of the Judicial College’s guidelines on PTSD - £35,000.
Past travel costs - £840.
Future treatment and travel - £4,650
Interest: £4,603 on general damages - £84 on past pecuniary loss
Total award - £85,177.
(5) LDX’s claim
The abuse: LDX was sexually assaulted by Bennell on at least 100 occasions. Johnson J accepted that LDX had suffered chronic mild PTSD and chronic low mood (dysthymia) over many years which had been exacerbated since disclosure (resulting in a moderate episode of clinical depression).
General damages for abuse: The nature and duration of the abuse (and the age of LDX at the time), and the psychological impact on LDX, were all similar to the case of JVF - £40,000.
General damages for pain, suffering and loss of amenity - £60,000.
Loss of chance of a football career: LDX was in demand as an associate schoolboy and an apprentice. Johnson J considered that LDX would have had a real prospect of securing a contract at a first tier club, and certainly a second tier club. That was perhaps fairly reflected overall by a 50% chance of the latter. However, there were further questions and contingencies best reflected by a reduction in the chance of a full career in a second-tier club by a half, so from 50% to 25% - £347,587.
Travel costs - £70.
Pension loss - £26,400.
Handicap on the labour market – if LDX had to leave his current employment for any reason, then the ongoing effects of the abuse were such that it was likely that it would take him longer to secure new employment than would otherwise be the case - £20,000.
Treatment/future travel - £25,580.
Interest - £6,137 on general damages - interest of £34,766 on past pecuniary loss. Total award of interest - £40,903.
Total award - £560,540.
(6) EJP’s claim
The abuse occurred from 1981/82 to 1983 and it included six incidents of rape. He had suffered from symptoms of PTSD since he was abused at the age of 11, worsening significantly in 2016 when he disclosed the abuse, and continuing to the present day.
General damages for abuse - £40,000. Although there were differences, the overall scale and nature of the abuse, the period over which it was perpetrated, and the psychological impact, was similar to that in the cases of JVF, FTS and LDX.
General damages for pain, suffering and loss of amenity - the case fell towards the lower end of the Judicial College guidelines for cases of severe PTSD - £60,000.
Travel - £60.
Future treatment and travel - £4,960
Interest - £6,137 on general damages - interest of £6 on past pecuniary loss - £6,143.
Total award - £111,163.
(7) HFT’s claim
HFT was subjected to repeated (several hundred) serious sexual assaults between the ages of about 9 and 14. There were many incidents of rape.
General damages for abuse - £70,000.
General damages for pain, suffering and loss of amenity - £50,000.
Past travel - £250.
Interest -£7,364 on general damages - £25 on past pecuniary loss - £7,389.
Total award - £127,639.
(8) KHT’s claim
KHT’s was at the less severe end of the spectrum presented by these 8 claims and amounted to 2 separate incidents. The experts agreed that KHT had suffered a deterioration in his mental health following disclosure of abuse in 2017. His psychiatric symptoms prior to 2017 had present throughout, although prior to 2017 they were mild, becoming much more severe in 2017 following disclosure. They fulfilled the diagnostic criteria for PTSD.
General damages for abuse - £10,000
General damages for pain, suffering and loss of amenity - £27,500
Travel costs - £370
Treatment and travel expenses - £6,080
Interest - £2,301 on general damages and £37 on past pecuniary loss - £2,338.
Total award - £46,288