JGE v The Trustees of the Portsmouth Roman Catholic Diocesan [12.07.12]
The relationship between a Roman Catholic parish priest and a bishop was sufficiently close in character to that of employee and employer to make it just and fair to hold a diocese vicariously liable for the wrongful acts of one of its priests.
Questions of vicarious liability are often raised in abuse cases. The law in this area, more than most, struggled to balance compensating innocent victims of horrendous crimes with the innocence of an employer who would never have countenanced the actions of their employee. Whilst the law has been largely developed in the arena of abuse cases the implications and tests adopted in these cases have consequences for all employer liability cases.
The importance to the claimant of establishing vicarious liability is that once established the employer will be liable for the actions of the employee irrespective of knowledge of those actions; in effect it will become a case of strict liability, imposing all liability without fault. There is no need for the claimant to prove systemic failings on the part of the employer, lack of training or any other of the usual common law and statutory tests applied to establish culpability on the part of an employer.
Often taken as a preliminary issue in abuse cases the courts have developed a two stage test. Firstly a consideration of the relationship between the employer and employee and secondly whether the employee’s tortuous act was closely connected with his employment that it would be just and fair to hold the employer vicariously liable. The second question has been considered and guidance provided in the House of Lords case of Lister v Hesley Hall Ltd .
This was the first case that the Court Of Appeal considered the first stage of the test. The Court of Appeal were divided and recognised this to be an extremely vexing area of law. On balance and trying to provide guidance for the future Ward LJ pointed to the following factors in determining in the claimant’s favour:
- The law has moved beyond the confines of contract of service.
- How does the employer come to be appointed? What degree of control is exercised over them? Co-operation or collaboration in the role?
- Was the employer able to give orders or guidance as to how the work should be carried out?
- Who provides the guidelines and overarching framework in which the employee must operate?
- To what extent is the employee integrated into the organisation?
- The entrepreneur test - is the employee behaving as if he runs his own little business, taking the risk and enjoying the rewards?
The Courts recognise that balancing the need to compensate the innocent and vulnerable victims of sexual and physical abuse with unblameworthy employers is a difficult balance to strike. The modern approach is flexible enough to extend beyond the usual factors of salary, contracts and control. It should however be borne in mind that in cases which are less emotive I suspect the guidelines will be applied less onerously on the alleged employer. In this case it was a very narrow decision indeed in favour of a finding of vicious liability.
The Claimant was placed in a children's home run by nuns of a convent in May 1970 aged six and a half years old, where she stayed for two years. She alleged that she was sexually assaulted and raped by Father Baldwin, a local parish priest, and that the Appellant diocesan Trust was vicariously liable for such acts. The Appellant denied Father Baldwin was in its service – neither they nor the incumbent bishop had any power to issue more than guidelines on application of canon laws to the whole diocese.
The judge at first instance acknowledged that vicarious liability involved the synthesis of two elements: the first stage being the relationship between the employer and the employee and the second being whether the act was within the scope of the employment.
In relation to the first stage, it was accepted that a priest was not an employee and there was no contract of service. However, vicarious liability could be founded on a relationship other than employment. The judge concluded that the relationship was akin to employment because of the close connection between the tortfeasor and the person against whom liability was sought.
The issue on appeal was whether the law could in fact be extended to relationships akin to employment, whether the close connection test was appropriate and whether it was enough that the result was just and fair.
Dismissing the appeal, Lord Justices Ward and Davis, with Tomlinson LJ dissenting, recognised the law of vicarious liability gave rise to a clash of two broad policies – one which allows a remedy for the victim of another’s wrongful act and the other that the defendant should not be liable unless at fault.
Whilst accepting the law had moved beyond the confines of a contract of service, the Court held it was wrong to conclude that the relationship between the tortfeasor and the person against whom liability was sought had to be sufficiently close. The correct test was whether the relationship of the bishop and the priest was so close in character to one of employer and employee that it was just and fair to hold the Appellant employer vicariously liable.
Applying the control test, a priest was not subject to direct control in the sense of the bishop checking what he did every day. However, residual control remains with the bishop, against a background of a priest being bound under canon law to show reverence and obedience to their ordinary. Indeed, Davis LJ went as far as to say that a priest is appointed to further the bishop’s aims and purposes. As with a health trust’s control over a surgeon – a priest is not told how to do the job but can be told how not to do it. Abuse of a child was a gross breach of ecclesiastical law and if it came to the bishop's knowledge, he would be bound to dismiss the priest from his office.
Considering the organisation test, whilst recognising the difficulty in identifying the employer's business, the Court held the Roman Catholic Church looked like a business and operated like one. The Pope resided in the head office, under which were "regional offices" with appointed bishops and "local branches" of parishes with their appointed priests.
In relation to the integration test, the role of the parish priest was wholly integrated into the organisational structure of the Church's enterprise. He was part and parcel of the organisation, not only accessory to it. The question in relation to the entrepreneur test was whether the priest was more like an independent contractor than an employee. He was not paid a salary directly and his situation did not resonate with being an entrepreneur.
However, whilst the priest did not match every facet of being an employee, the overall conclusion was that he was in a relationship with his bishop which was close enough and sufficiently akin to that of employer and employee to make it just and fair to impose vicarious liability. Justice and fairness was used as a salutary check on the conclusion, but was not a stand alone test.