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High Court, Queen’s Bench Division
30 October 2015
The claimant claimed personal injuries arising from two alleged assaults on his person by the second defendant. The claimant also claimed damages from the first defendant alleging they were vicariously liable. It was held that the claimant had not discharged their burden of proof and to hold the club liable would be an unjustifiable extension of the doctrine of various liability.
The claimant alleged between 1986 and 1987 when he was 16 he was subjected to a practice known as ‘gloving’. This is where a gloved finger is covered in a hot rubbing ointment and inserted into the rectum. He alleged this was a common form of punishment at the first defendant club and a widely known about and accepted practice. Following the first incident the claimant stated that he fell into alcohol misuse, his relationships suffered and his football career deteriorated.
The court was asked to consider whether firstly, the instances had taken place, and if so, whether the defendant club was vicariously liable; and whether the claimant had suffered any physical or psychiatric injury.It was stressed by the judge that this was not a case of alleged systemic or institutional neglect or abuse of apprentices at the first defendant club. It was therefore necessary to adopt the appropriate terminology for the offences and although now they would be considered sexual offences at the time of their alleged committal it was not conventional to use criminal terminology in civil proceedings.
The court considered that although the claim had been allowed to proceed out of time too much time had passed and the reliability of the memories of those concerned had effected their credibility. The picture had become so confused and the truth obscured that the judge could not make a positive finding of fact.
Finally, the judge considered that even if the claimant had made out his case in the absence of any formal duties or powers conferred on the professional players by the club, the type of assaults described by the claimant would amount to deliberate and intentional or reckless conduct involving a serious assault outside the course of the employment relationship and therefore the club could not be held vicariously liable.
Although a claim may be allowed to proceed out of time it is important for claimants to thoroughly test the reliability of their evidence and ensure consistency throughout. Claims for vicarious liability are very complex. Various elements, including control of the offending employee and close connection to employment amongst other elements need to exist in order for an employer to be held vicariously liable for the acts or omissions of their employees.Sandra De Souza and Amy Wedgwood, Anthony Gold