GB v Stoke City Football Club Ltd & Anor

In civil proceedings involving serious allegations, there remains a single unvarying standard of proof: the balance of probabilities. The seriousness of an allegation affects the care with which evidence is assessed, but does not require a heightened standard or specially cogent evidence.

For battery, the claimant must prove intentional or reckless unlawful physical contact without consent. Malice, ill-will or an intention to cause harm is unnecessary. Vicarious liability requires both a relationship capable of giving rise to liability and a sufficiently close connection between that relationship and the tort. Mere opportunity, workplace location, or a theoretical risk of misconduct is insufficient where the employee had no relevant duties or authority and acted on an independent personal venture.

The claimant alleged that, while an apprentice footballer at Stoke City Football Club in 1986–88, he had twice been subjected to serious intimate physical assaults by the club’s goalkeeper, Peter Fox. He claimed damages against Fox for trespass to the person and against the club on the basis of vicarious liability.

The limitation period had previously been disapplied under section 33 of the Limitation Act 1980. Following a lengthy substantive trial, the principal issues were whether either assault occurred, whether the claimant suffered injury or loss, and, if so, whether the club was vicariously liable.

1. Claim against the second defendant. The claimant bore the burden of proving the alleged assaults. The court had to determine the facts by examining and evaluating the evidence, resorting to the burden only where the facts could not otherwise be resolved. The balance of probabilities was the applicable standard.
2. The seriousness of the allegations did not create a heightened civil standard. Inherent probabilities were relevant to the evaluation of evidence, but there was no sliding scale requiring stronger evidence as allegations became more serious. The claimant’s evidence concerning alcohol misuse, personal relationships and deterioration in football performance was materially unreliable. The supporting evidence was inconsistent, unreliable or dishonest in important respects. The court could not make the positive findings necessary to establish either assault.
3. The claim therefore failed against Mr Fox. The dismissal did not amount to a positive finding that no assault or prank had occurred. Suspicion and speculation could not substitute for evidence.
4. Vicarious liability. The applicable inquiry had two stages: whether the relationship was capable of giving rise to vicarious liability, and whether there was a sufficiently close connection between that relationship and the tort. The club conceded the first stage. The second-stage question was whether it was fair and just to hold the club liable, applying the principles in Lister v Hesley Hall and Various Claimants v Catholic Child Welfare Society.
5. Even if the assaults had been proved, the club had not conferred on Mr Fox any express or implied duty, power or discretion to train, discipline or chastise apprentices. The alleged conduct would have been deliberate and intentional or reckless conduct outside the course of his employment. The fact that the club’s business brought professionals and apprentices into contact, or created a theoretical risk of friction, did not extend vicarious liability to every assault by an employee on an apprentice.
6. The claims against both defendants were dismissed. The claimant was ordered to pay both defendants’ costs, subject to detailed assessment, with interim payments on account directed within 21 days.