Bishop can be vicariously liable for priest’s sex abuse, rules High Court

JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011) - Read judgment

Elizabeth Anne-Gumbel QC and Justin Levinson of One Crown Office Row acted for the Claimant in this case. They did not write this post.

A Roman Catholic diocese can be held liable for the negligent acts of a priest it has appointed, the High Court has ruled. The ruling is a preliminary issue in the Claimant’s proceedings against alleged sexual abuse and rape at a children’s home. The trial of these allegations are to follow.

The Claimant, a 47-year-old woman, is suing the Portsmouth Roman Catholic diocese for the injury she alleges she suffered from abuse and rape while living at a children’s home run by the diocese in the early 1970s. The priest involved, Father Baldwin, is now dead. The High Court was asked to determine, before the trial of the allegation, whether the diocese – that is, the district under supervision of the Bishop – could be held liable for Father Baldwin’s acts; whether the principle of vicarious liability applies to a diocesan bishop for the acts of a priest he has appointed.

The principle of vicarious liability has been in flux in recent years. As the judge noted, the principle applied initially solely to an employment setting: it was a way of holding employers responsible for the negligent acts of employees performed in the course of employment. This gives the victim of harm some monetary redress (as many employees may not have the money to pay damages) and it further encourages employers to take care in appointing staff.

In recent years, the principle has been gradually extended beyond the employment scenario, but up to now the courts have been reluctant to extend it to the non-employment relationship between a priest and their Bishop.

Close enough connection

The issue at this preliminary hearing was whether the relationship between the priest and the diocese was such that the diocese should be liable in principle for the acts of the priests. With the priest deceased, only a positive finding could allow the claim to continue.

The judge, Mr Justice MacDuff, set out the two parts of the test to establish relationship of vicarious liability: stage one is whether the relationship between the person committing the wrong (tortfeasor) and the potential vicariously liable party (normally an employer) is such that liability may be established; stage two whether the act was done ‘in the course of employment’ so that it was fair and just to impose liability (the so-called ‘close connection test’).

However, after laying out these two limbs, Mr Justice MacDuff then considered them together, with support from the case of Various Claimants v The Catholic Child Welfare Society v The Institute of the Brothers of Christian Schools [2010] EWCA Civ 1106 (paragraph 37) when he said “it is a judgment on the synthesis of the two which is required.”

The judge considered recent cases where vicarious liability was at issue, including Canadian and South African cases that decided similar issues. The Canadian cases were crucial. The case of “most significance” is MAGA v Trustees of the Birmingham Archdiocese [2010] EWCA Civ 256, which we have posted on previously. The case involved similar allegations of child abuse at a Catholic church. However, in that case as in most others cited by the judge, it was the second part of the test – whether the acts could be said to be sufficiently connected with employment – that was at issue. It was accepted there that the priest was employed by the diocese.

In this case the diocese has maintained that Father Baldwin was not an employee, that the relationship was not even ‘akin to employment’ and so the Church shouldn’t be held liable for his acts.

The judge disagreed. He said that there was a ‘close connection’ within the meaning of both limbs of the test:

At stage two the close connection is between the tortious act and the purpose and nature of the employment / appointment. At stage one the closeness of connection is between “the tortfeasor and the person against whom liability is sought (paragraph 34).

The judge said that employment clearly meets this standard for the first stage. But there were “crucial features” to be considered for non-employment cases: who appoints the person alleged to have done the wrong (the ‘tortfeasor’); what is the purpose of their appointment; if they have authority to be a representative; if they are provided with equipment, premises and training (paragraph 35).

The judge found that in this case each of these features were in favour of potential liability. In deciding this, Mr Justice MacDuff explicitly said that many of the reasons for passing the first limb – a sufficiently close relationship – would be used in deciding the second limb – acts closely connected with the employment / appointment. The judgment ends by reinforcing that the two different aspects of finding vicarious liability “are not to be determined in isolation” (paragraph 40).

Comment

This is clearly a significant decision. It clarifies that the Church may be liable for negligent actions of its priesthood. There are likely to be dozens of cases lining up to follow the decision.

Additionally, though the judgment ends up with a thoughtful and reasonable approach to a difficult area of law, much of the reasoning considers cases that argued a different point of law or were in different jurisdictions. This does not mean the end result is wrong, but it certainly leaves room for argument.

This will not be the last word on the case as permission has been granted for appeal to the Court of Appeal. Given the potentially enormous financial consequences of the decision being left to stand, this case may well end up in the Supreme Court.

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8 thoughts on “Bishop can be vicariously liable for priest’s sex abuse, rules High Court

  1. Praise GOD for an answer to heartfelt prayer. . . Ex. 22:22-23: “Ye shall not afflict any widow, or fatherless child. If thou afflict them in any wise, and they cry at all unto me, I will surely hear their cry . . “***I was ecstatic to learn that the VICTIMS/SURVIVORS of Roman Catholic Clergy Abuse in the UK may yet have their day in court. Though in truth . . what the victims of clergy abuse have lost can never be regained, some are able to find closure by holding their perpetrators accountable and prosecuted to the full extent of the law. Victims are vindicated when they see judgment pronounced upon the Abuser and the penalty / sentence for their heinous crimes imposed by the Judge meted out. Victims of abuse are vindicated when compensatory damages are rewarded for pain and suffering, along with the mental anguish they have endured, and the costs associated with therapy they have borne. Thankfully this unseemly legal maneuver employed by the RC “church” to obstruct justice for the Victims by denying them recourse through the courts of the land has been rejected. I thank God that this Judge did the right thing in ruling favorably for the Victims, because as the Roman Catholic “church” has demonstrated time and time again, unless compelled to do so, they will not do the right thing! Finally the scales of justice are being tipped in favor of the Victims! Though prosecution of RC Clergy Abusers appears to be the exception rather than the rule, we can thank God that in this matter the just and righteous cause of the Victims has been furthered.***In solidarity with the VICTIMS / SURVIVORS of Roman Catholic clergy abuse, JuneAnnette

  2. A Priest engaging in breaking the law ,is acting outside of the scope of his employment ,there fore his “employer” ie, the parish, cannot be held responsible for his torts.

  3. It strikes me that, following the arguments given in the judgement, the parents of a child who is abused by a baby-sitter are vicariously liable. It also implies that any organisation that appoints a person with a professional qualification (doctor, nurse, dentist, lawyer) is also vicariously liable in having ‘created a risk of harm to others, viz the risk that he could abuse or misuse those powers for his own purposes or otherwise.’

    It will be interesting to see how the actual case turns out, as this is just a judgement to say that the case can be heard. It appears to have far-reaching implications for litigation against all sorts of organisations, and not just to be used as a stick with which to beat the Roman Catholic church, as some respondents seem to desire.

  4. But, Maurice, if the priest is an employee then the parish should show due diligence in appointing people who will stay within the law and supervising them to ensure that they do. That’s especially true for an employee given such extraordinary powers as a priest is.

  5. Maurice,
    The law says different: employers are responsible for employees’ misdeeds.

    Firstly, note from the Court’s judgement (para 1 – 4, http://www.bailii.org/ew/cases/EWHC/QB/2011/2871.html ) that it is not the parish that is being sued / held liable, but rather both the diocese (for the Bishop) and the community of Nuns who ran the children’s home which looked after the child.

    Secondly, this judgement rules that his ‘employer’ (the bishop) is legally responsible for this type of wrongful act by an employee (the priest). This is known as a ‘vicarious’ liability, where the employer is treated by the law as being responsible for the employee’s wrongful acts in the course of their work.
    This is explained in para 10 :
    “What has to be recalled is that the vicarious liability in question is one which involves no fault on the part of the employer. It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit”
    See also para 23 and 24 of the judgement.

    All employers (and this court ruling extends this liability for the actions of priests to Catholic Bishops) are therefore legally expected both to choose their employees with care (e.g. pick priests who won’t abuse vulnerable children), and also to take reasonable steps to reduce the risk of sexual abuse (e.g. adequately supervise them, comply fully with child protection law, and implement suitable child protection policies). People who run children’s homes have a similar duty of care to protect their children from mistreatment.

    Catholic Bishops have a particular responsibility because of the special position of priests (para 38 in the judgement).

  6. The decision seems fine to me since the situation is analogous to the teacher in Lister v Hesley Hall Ltd [2002] 1 AC 215. It is by virtue of being a priest – (and, as such, trusted) – that enables them to be in close contact with young children. There is the required close connection with employment so that it is fair and just to hold the employer liable.

  7. The bishop for the diocese (Portsmouth) issued a statement on 10 November in response to the High Court judgement. http://www.portsmouthdiocese.org.uk/docs/The-Diocese-Fr-Wilf-Baldwin.pdf

    Bishop Crispian Hollis wrote:
    “…. The primary reason that we are defending this claim is that, at the time the Claimant was resident at the home, Fr Baldwin was based at the other end of the Diocese and had no connection with the children’s home. The Diocese does not therefore accept the Claimant’s allegations against Fr Baldwin. The Court will have to reach its own conclusion if and when the main issue is heard, which is unlikely to be before next year.
    ….
    …. I would like to make it clear that the Diocese was not seeking to evade responsibility for the actions of its priests. The Diocese accepts that where a Bishop has, for example, failed to prevent a priest from committing an act of wrongdoing, he will be liable in negligence. However, this case was not concerned with negligence, it was concerned with whether a Bishop should be automatically liable for the actions of a priest simply by virtue of the fact that he or one of his predecessors appointed the priest. The Diocese is aware of no other organisation which can be held liable for the actions of its office holders in this way.
    There are clear problems with the judgment of the High Court in this case. The Diocese has not yet made a decision as to whether or not to appeal that judgment. A decision will be taken following receipt of legal advice and bearing in mind the sensitivities of these issues for those who have suffered abuse perpetrated by a Catholic priest.
    ….
    The costs associated with this case, together with any damages that might be awarded if we were to lose the case, are being covered by our insurers …. .”

    The bishop is being disingenuous. Whether a diocesan bishop is liable in principle for the actions of his priests was the substance of the issue decided by the High Court. Yet the bishop claims “the Diocese was not seeking to evade responsibility for the actions of its priests.” … “[T]his case was … concerned with whether a Bishop should be automatically liable for the actions of a priest simply by virtue of the fact that he or one of his predecessors appointed the priest.”

    The bishop can’t have it both ways. Disputing vicarious liability means he was seeking to establish the principle that catholic bishops can evade responsibility for the actions of their priests. That was the substance of the issue before the Court (para 5 of judgement: “The Defendant contends that Father Baldwin was not its employee (nor was the relationship “akin to employment”) and that [there was no] vicarious liability … “).

    The bishop’s “primary” defence, that the accused priest lived on the other side of the diocese at the time and had no connection with the children’s home where JGE lived, will be relevant only at the hearing into the claim itself.

    The bishop’s own statement is evidence that the motive for disputing vicarious liability in this case was more a matter of principle, undertaken for the Catholic Bishops of England and Wales: “seeking to evade responsibility for the actions of its priests.”

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