Religious roles have thrown up several significant decisions in personal injury claims in recent years on who can be held responsible for the acts of an individual. At first glance, the Supreme Court decision in Preston v The President of the Methodist Conference  sits uncomfortably with the general pattern.
Preston involved a Methodist minister who wished to bring a claim for constructive dismissal when, following re-organisation, her role ceased to exist. She had to show that she was an employee. Both the Employment Appeal Tribunal and Court of Appeal had held that she was an employee and so entitled to bring a claim.
The Supreme Court concluded that she was not an employee. Lord Justice Sumption held that the presence of payment, accommodation and recognised duties did not, without clear intentions on the part of both parties, create an employment contract or indeed any form of contractual relations.
Lady Justice Hale’s dissenting judgment sits more comfortably with previous case law in both the employment and personal injury arenas. In her view, everything about the arrangement looked contractual.
Personal injury claims
In personal injury claims, the Supreme Court has been willing to make findings of vicarious liability within religious institutions. A recent example is The Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools . Here the Supreme Court held that there was liability on the part of the Institute for sexual abuse carried out by the Brothers, whose services were provided to a school to act as part of the teaching staff.
In his judgment in that case, Lord Justice Phillips highlighted the Canadian Supreme Court’s doctrine of risk, as set out in Bazley v Curry , namely that where an employer puts into a community an enterprise carrying with it certain risks, and those risks materialise and cause injury, it is reasonable that, having created that enterprise and hence the risk, the employer should bear the loss. This had the added benefit of acting as a deterrent because, if the employer knew it would have to bear the loss, it would be more careful at the outset.
The Supreme Court’s decision in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church  and JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust . In both these cases, the Court of Appeal concluded that the Defendants could be held vicariously liable for the acts of perpetrators of abuse. The decisions relied heavily on the doctrine of 'enterprise risk'.
It is important to remember that the decision in Preston was made in a different legal context, with separate tests to be applied. A key difference is that personal injury claims do not require the court to find that the religious authorities actually employed the perpetrators. Instead, the court will consider whether there was a relationship akin to employment.
For potential defendants in personal injury claims and their insurers, the decision in Preston can therefore bring no comfort.
The next tranche of litigation is likely come out of the Savile investigations and may well give rise to other scenarios requiring input from the Supreme Court. Insurers will no doubt be reviewing their books to identify any policies which may give rise to further claims, particularly in light of the flexible approach that can adopted towards limitation in these types of claims.