Vicarious liability revisited JGE v Trustees of Portsmouth Roman Catholic Diocesan Trust14 is an important case in which the Court of Appeal, by a majority of 2 to 1, upheld the decision of the judge at first instance15 on a preliminary issue in finding that the Appellant could be vicariously liable for the alleged torts of one of its parish priests. The leading judgment of Ward LJ considers the academic and judicial learning on the doctrine in considerable detail and should probably be considered a starting point for cases in which difficult issues concerning vicarious liability arise.
In JGE the Court explicitly widens the scope of the doctrine of vicarious liability, extending it from well-established situations of employment to relationships which are ‘akin to employment’. The question the court posed itself was whether the relationship between the allegedly abusive priest and his bishop was so close in character to employer / employee that it would be just and fair to hold the diocesan trust vicariously liable for the priest’s actions. It held that there need be no ‘close connection’ between the tortfeasor and the person against whom liability has been sought and that if a close connection test is to be applied, it is that the relationship between the defendant and the tortfeasor should be so close to a relationship between an employer and employee that, for vicarious liability purposes, it can fairly be said to be akin to employment. The nature and extent of control exercised by the bishop over the priest was considered at some length in answering the question, the Court reiterating that, following Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd,16 control need not be entire or absolute, whilst the fact that the bishop was not and could not be the priest’s employer in law was not decisive.
The case is likely to have significant ramifications for other areas of the law (most obviously in employers’ liability litigation, though potentially also in employment matters) and although permission to appeal was refused by the court, it was expressly anticipated by their lordships that the Supreme Court might well wish to consider the point once a fully contested trial had taken place, and following consideration of linked (though not identical) issues by the SC in Various Claimants v The Catholic Child Welfare Society & The Institute of the Brothers of the Christian Schools, in which argument was heard on 23rd July 2012.
The scope of combat immunity In Smith & Others v Ministry of Defence,17 the Court of Appeal refused to strike out claims of negligence brought by the families of servicemen killed in Iraq, holding that the Ministry of Defence (“MOD”) owed a common law duty of care to members of the armed forces which included a duty to provide safe systems of work and safe equipment. The Court also allowed the cross-appeal of the Ellis claimants, holding that the allegation of negligence made against the MOD concerning the re-introduction of the lightly armoured Snatch Land Rover (which Private Ellis was driving at the time of his death) was an allegation of failures made away from the theatre of war, and so, if made good, would arguably not fall within the scope of combat immunity. The appeal in relation to Article 2 was dismissed, however, the court holding that soldiers did not fall within the scope of the UK’s Convention jurisprudence when engaged in the combat operations in which they were killed: Al-Skeini v United Kingdom18 considered.
In Smith the Court of Appeal considered two groups of claims, the ‘Snatch Land Rover Claims’ and the ‘Challenger Claims’. In the Snatch Land Rovers Claims the claimants, all relatives of servicemen killed in Iraq by improvised explosive devices whilst travelling in Snatch Land Rovers, brought claims against the MOD under Article 2; the relations of Private Ellis also brought claims in negligence, alleging failure to provide suitable equipment and, in particular, in re-introducing the Snatch Land Rovers, despite having withdrawn them seven months previously following the deaths of several servicemen. Owen J, at first instance, struck out all of the Article 2 claims, refused to strike out the negligence claims of the Ellis claimants in respect of the alleged failure to provide suitable equipment, but struck out the claims in respect of the reintroduction of the Snatch Land Rover on the basis that this decision fell within the scope of ‘combat immunity’. The claimants in the Challenger Claims alleged a failure to provide available technology to protect against the risk of ‘friendly fire’ and a failure to provide adequate vehicle recognition training, following an incident in which one serviceman was killed and two injured when one British tank opened fire on another in the course of the offensive on Basra. Owen J declined to strike the claims out.
In appealing, the MOD sought to argue that the claims in relation to inadequate equipment gave rise to issues of procurement, involving consideration of questions as to the scarcity and allocation of resources and questions of policy, which were therefore non justiciable. Moreover, that the actions taken fell within the scope of ‘combat immunity’.
In refusing to strike out the claims, the Court of Appeal held that the mere fact that questions might arise as to policy and as to the allocation of scarce resources did not preclude the existence of a duty to take care: Davies v Global Strategies Group (Hong Kong) Ltd19 and Hopps v (1) Mott Macdonald Ltd (2) Ministry of Defence20 applied. Policy questions are indeed relevant, but in context not to the question of whether there exists a duty of care, but as to whether it has been breached and as to the standard of care to be applied. There could be no basis for distinguishing the MOD from any other public body in relation to the duty it owed to its employees save in relation to combat immunity, but the very existence of that immunity fortifies the view that in respect of actions or omissions outside its scope there is no reason to preclude an action in negligence. This was further underlined by the absence of any statutory prohibition against making claims for negligence and the abolition of the exemption from liability of the Crown in tort by section 1 of the Crown Proceedings (Armed Forces) Act 1987.
As to whether the MOD’s actions were within the scope of ‘combat immunity’, the court considered the rationale behind the immunity, which placed heavy emphasis on “actual engagement” and “the heat of the battle” (Mulcahy v Ministry of Defence21 cited). The allegations of breach of duty in the instant case were said to relate to acts and omissions which had occurred well before the active operations in which death and injury took place, and so the equipment and training claims arguably fell outwith the scope of combat immunity.
Duty of care for acts of third party In Selwood v (1) Durham County Council (2) Tees, Esk & Wear Valleys NHS Foundation Trust (3) Northumberland, Tyne & Wear NHS Foundation Trust 22 the Court of Appeal allowed the Appellant (‘A’)’s appeal against a decision striking out her personal injury claim against the second and third respondents (the respondents will be called R1, R2 and R3). At the time of her injury, she was working as a social worker for R1, which worked closely with R2 and R3 to provide integrated social care and mental health services. One of A’s cases concerned a girl whose father suffered from mental health problems and was a voluntary patient of R2 and R3. He was known to have a history of violent behaviour. He told medical professionals employed by R2 and R3 that he wished to harm one of his daughter’s social workers and that he would “kill her on the spot” if he were to see her. This information was not passed on to A or to R1. He subsequently discharged himself from an acute mental health admissions ward at a hospital operated by R3 and attacked A with a knife, causing serious injuries. A’s claim against R2 and R3 was dismissed on the basis that she was owed no duty of care in respect of the actions of a third party.
The Court of Appeal allowed the appeal. Following the tripartite test in Caparo it confirmed that factors relating to foreseeability of harm and proximity of the relationship often also impinged on the question of fairness, justice and reasonableness, and that where the defendant was a public authority, there would be important additional factors of public policy to be considered. That notwithstanding, there might be some classes of claimant who stood in such a special relationship with the defendant public authority that it would be fair, just and reasonable to impose a duty of care. Where that relationship existed, a defendant would owe the employer’s duty of care to its employees despite there being a potential conflict of interest between that duty and the defendant’s duties to the recipients of its core services. The court noted that if a duty was owed to a limited class of employees for the action of a third party, the force of some of the policy considerations was less than if the duty was said to be owed to the world at large, and the trial judge had failed to consider A’s special position. Taking the particular relationship between the parties into account, it would be open to a trial judge to conclude that it was fair, just and reasonable to impose a duty of care on R2 and R3. It was also arguable that the respondents might have breached A’s rights under Article 2 of the ECHR. The case was remitted for trial on both issues.
Fatal Accidents Act human rights compliant In Swift v Secretary of State for Justice23 the High Court confirmed that the provision in the Fatal Accidents Act 1976 s.1(3)(b) which stipulates that an unmarried cohabitee must have lived with a partner for 2 years or more prior to the partner’s death in order to bring a claim for loss of dependency is not incompatible with the right to family life under Article 8 of the ECHR, nor discriminatory for the purposes of Article 14. Eady J held that the case was one in which it was claimed that Art. 8 imposed a positive obligation upon the UK, such that the Claimant needed to show a “direct and immediate link” between s.1(3)(b) and her private or family life, and she had not been able to do so. It was not the purpose of s.1(3)(b) to improve, promote or benefit ongoing family or private life and it did not fall within the ambit of Art. 8: it was concerned simply to provide certain categories of person with a right to claim for losses that can be measured in financial terms. As to whether the provision was discriminatory, having lived with someone for a particular length of time did not confer status, nor would it represent a personal characteristic for the purposes of Art. 14.
Risk and socially useful activities Finally, Blair-Ford v CRS Adventures Ltd24 continues a line of cases in which, following Barnes v Scout Association25 and taking into account s.1 of the Compensation Act 2006, consideration is given to the social utility of an activity in which a claimant is engaged at the time of injury. In this case, the injured party was a teacher who fell awkwardly when taking part in a welly-wanging competition whilst on an outward bound weekend with his school and suffered severe spinal injuries. Though the decision turned on its facts – the court held that there had been no foreseeable real risk and that it had been a tragic and freak accident for which no blame could be established – there is useful commentary on both the social utility point and on the importance to be placed on risk assessments in different situations. Citing the comments of Lady Justice Smith in Uren v Corporate Leisure (UK) Ltd,26 Globe J reiterated that risk assessments are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way, but may be a less effective tool where a lot of variables come into play. As that was the case here, a dynamic risk assessment had been appropriate.