Bishop can be vicariously liable for priest’s sex abuse, rules High Court
9 November 2011
JGE v The English Province of Our Lady of Charity & Anor  EWHC 2871 (QB) (08 November 2011) – Read judgment
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  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  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).
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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