TVC & Ors v Manchester City Football Club : Lessons in limitation and vicarious liability

By Georgie Woolmer, Luke Daniels and Richard Sweetman, personal injury lawyers at Irwin Mitchell

Johnson J handed down his judgment following a seven week trial in the Manchester City Football Club (MCFC) case concerning eight claimants who suffered sexual abuse by football coach Barry Bennell.  

The trial judge considered MCFC’s liability, if any, for Bennell’s actions. 

Trial – outline of the issues

The claimants brought claims for damages for long term psychiatric injuries, with some also claiming loss of opportunity to pursue a career in football.  The claimants’ legal team argued that MCFC engaged Bennell to run feeder teams so that young talent could be spotted in advance.

The defendant’s legal team argued that Bennell was a local MCFC scout in the mid-1970s but that Bennell never had a formal contract of employment, raising issues as to whether MCFC could be found 'vicariously' liable for his actions.

Johnson J outlined the case as having four main issues, namely: limitation, vicarious liability, causation and quantum of loss.

Limitation

The claimant’s brought their claim 27 years outside of the primary limitation period.  Johnson J dealt with limitation first, considering whether the court should disapply the usual three-year limitation period pursuant to section 33 of Limitation Act 1980.

Johnson J concluded that the delay in bringing the claim had ‘badly compromised’ the court in being able to adequately assess the claim and stated that, for this reason, the case failed on the issue of limitation.

Vicarious liability

Johnson J applied the two stage test established in Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56; [2013] 2 AC 1 in the event that the limitation point outlined above failed, considering: 

Whether the relationship between MCFC and Bennell was akin to employment and/or was capable of giving rise to vicarious liability; and

If Bennell’s assaults were so closely connected with acts that he was authorised to do that they may properly be regarded as done by him while acting in the ordinary course of MCFC’s business.

The claimant’s legal team argued that MCFC was vicariously liable for Bennell’s abuse as there was a relationship akin to employment between Bennell and the club. Bennell was a scout and coach for MCFC and he ran feeder teams for MCFC which provided future recruitment and benefit to the club, and was central to their enterprise. It was during these duties the claimants were abused.  

The defendant’s legal team argued that any relationship between the defendant and Bennell was not akin to employment as the defendant had no control over Bennell, nor did they entrust or assign and activities to Bennell which gave rise to the risk of the torts being committed. 

Johnson J looked at stage 1 of the test above and concluded that:

• Bennell wasn’t in a relationship with the defendant akin to employment;
• Bennell had a full time job and his footballing activities were voluntary and undertaken in his spare time;
• Bennell’s coaching activities had a distinct existence, independent from the defendant in that he coached and merged numerous teams that weren’t under MCFC’s remit, with there being little evidence of the defendant exercising control over Bennell’s activities;
• Bennell bore the financial risk of footballing activities arranged and wasn’t reimbursed for expenses;
• An employment relationship also involved an implied obligation to comply with an employer’s lawful and reasonable instructions and here there was no evidence that Bennell was under any obligation to comply with instructions given by MCFC. 

As a result the court held that the claimants failed to establish the first stage of the test for vicarious liability. 

Johnson J also considered stage two of the test above in the event that stage one was held to have been applied incorrectly, stating that:

• There was no clear evidence that the defendant was able to tell Bennell how to carry out his duties or what he should and shouldn’t do;
• Bennell was used by the defendant to organise teams in the course of trials but this was not sufficient to show that it exercised ‘even a vestigial degree of control in respect of his day-to-day coaching duties’;
• The connection between the abuse and Bennell’s relationship with defendant was insufficient to give rise to vicarious liability and, although the relationship gave him the opportunity to commit the abuse, the defendant had not entrusted the welfare of the claimants to Bennell.

As a result of the above, Johnson J held that MCFC was therefore not vicariously liable to the claimants for Bennell’s abuse.

Summary

The judgment, handed down on 10 January 2022, held that the claimants’ claim failed on both points of limitation and vicarious liability.  The claimants’ legal team are reportedly considering an appeal.

Find out more about Irwin Mitchell's expertise in supporting survivors of abuse, including historic abuse, at our dedicated abuse and criminal injuries section.