Church has employer’s duty of liability for parish priests
16 July 2012
The Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.
This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan – see Rachit Buch’s post for an excellent analysis of the issues and summary of the facts.
The claimant argued that the defendants should be held liable for the wrongdoing of the priest because at the time they “operated and/or managed and/or were responsible for” the church where he served. The defendants were said to have entrusted the safe keeping and care of the claimant to Father Baldwin. It was also alleged that the sexual abuse and assaults perpetrated by the priest were committed in the course of or were closely connected with his employment and therefore that the defendants were vicariously liable for the injury and damage which the claimant suffered.
The trustees argued that they were not in control in the sense that neither they nor the incumbent bishop had any power to remove Father Baldwin from the priesthood or his office other than in accordance with the process set out in the Code of Canon Law (which requires proof of a grave cause under canon law). So they denied that Father Baldwin was in their service: he was at all times following his vocation and calling as a priest.
In the court below the issue of vicarious liability was set out in two stages, the first being the relationship between the employer and the employee and the second being whether the act was within the scope of the employment. In all the other cases involving claims of sexual abuse by priests the church has only challenged its responsibility for the actions of its priests on the basis that the acts were outside the scope of the “employment” of the priest. This case is one of the first in which the first stage of vicarious liability has been challenged, namely whether the relationship between the priest and the church is such that the principle of vicarious liability may attach if the tortious acts of the priest were within the scope of the relationship. The judge below accepted that a priest was not an employee, but that vicarious liability could be founded on a relationship other than employment. He therefore 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 here was whether the law could be properly 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.
The Court of Appeal’s judgment and reasoning
The appeal was dismissed. The Court held by a majority (Tomlinson LJ dissenting) that the law of vicarious liability had moved beyond the confines of a contract of service. Giving the leading judgment, Ward LJ conducted a thoroughgoing analysis of the main rationales of vicarious liability, examining in turn the theories of sufficiency of connection and control to explain the doctrine of vicarious liability and its limits in these circumstances and other modern situations where there is no clear relationship of proximity or authority between the wrongdoer and the defendant.
1. The rationale behind vicarious liability
The doctrine occupies a “mysterious place” in the common law, an “apparently unjust” rule that is firmly embedded in our system of tortious liability. There is nothing modern or nanny-state about the doctrine that make masters liable to society for the wrongdoing of their servants. The origins of vicarious liability are buried deep in the medieval law, starting in circumstances where the master had expressly commanded his servant to commit a wrong. It consequently developed to encompass acts done by implied command. Now the notion of master/servant has become obsolete and the issue has been for decades whether there was a true relationship of employer/employee between the defendant and the wrongdoer.
The doctrine imposes liability on D (the Defendant) to compensate C (the Claimant) for the damage suffered by C caused by the negligent or other tortious act of A (the Actor) even though D is not personally at fault at all. An elegant explanation of the rationale behind vicarious liability was given by Rix LJ in the 2005 of Viasystems –
Liability is imposed by a policy of the law upon an employer, even though he is not personally at fault, on the basis, generally speaking, that those who set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently. Liability is extended to the employer on the practical assumption that, inter alia, because he can spread the risk through pricing and insurance, he is better organised and able to bear that risk than the employee, even if the latter himself of course remains responsible; and at the same time the employer is encouraged to control that risk.
So what is the ambit of this rule today?
2. The “close connection” test
The ambit of liability should extend beyond situations where there is a clear contract of employment, and the test for liability should not rest on a sufficiently close connection between the defendant and the wrongdoer that approximates to employment. The “stage two” version of the close connection test is the connection between the work the employee had been employed to do and the acts of abuse that he committed. But the close connection test for stage 2 purposes should not be transposed to stage 1 which is analysing the nature of the relationship: if there is a close connection test, it is that the relationship between the defendant and the tortfeasor should be so close to a relationship of employer/employee that, for vicarious liability purposes, it can fairly be said to be akin to employment. In this case, the real test was whether the relationship of the bishop and the parish priest was so close in character to one of employer and employee that it was just and fair to hold the employer vicariously liable.
3. The “control” test
Control has long since ceased to be the crucial factor for determining liability other tests for distinguishing the employee from the independent contractor developed. But to the extent it still applies, the Court concluded that it operated against the defendants in this case. Whilst a priest was subject to no direct control in the sense of the bishop checking what he did every single day, there was a level of control in the sense that if certain things did not happen then action could be taken. Moreover, under canon law, priests were bound by special obligation to show reverence and obedience to their ordinary. 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. A priest also operated within a pre-existing framework of rights and obligations set out in the Code of Canon Law and was ultimately subject to the sanctions and control of his bishop to whom he was accountable.
4. The “organisation” test
The problem in relation to the organisation test was in identifying the employer’s business. However, the Roman Catholic Church looked like a business and operated like one. The Pope was in the head office; there were “regional offices” with appointed bishops; and the “local branches” were parishes with their appointed priests. As far as the integration test was concerned, the was part and parcel of the organisational structure of the Catholic Church, not only accessory to it.
5. The “entrepreneur” test
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, but was dependent on what he could take from collections given at Mass. However, any surplus formed part of the parish funds. His situation was akin to being paid a wage and certainly did not resonate with being an entrepreneur. Father Baldwin did not match every facet of being an employee, but the result of each test led to the conclusion that he was more like an employee than an independent contractor. The “very fact” that the priest was required by Canon Law to reside in the parochial house close to his church was “rather like the employee making use of the employer’s tools of trade”. The relationship was akin to employment within the meaning which an ordinary person would give the words. 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. The Court had to find a way to articulate general legal principles which would allow it to decide whether the bishop may be vicariously liable for the alleged torts of Father Baldwin – to set aside the “outrage” element and permit a a coherent and principled development of the law “not as an expedient reaction” to the problem confronting it. So Rix LJ proposes the following scenario: the priest
receives an urgent call to minister the last rites to a faithful member of his parish close to death…. To perform this sacred duty he jumps on his battered old bicycle and pedals furiously down the hill to attend his ailing parishioner. Alas he does so negligently, fails to observe another of his flock on a controlled pedestrian crossing. She is knocked down and suffers injury. The priest was clearly in the course of doing what he was appointed to do … But he has taken a vow of poverty. He is not himself insured. But the parish is. Are we really having to conclude that his bishop and/or the diocesan trust are not vicariously liable because he is not employed or in a relationship akin to employment? Are we to say he is simply an office holder personally responsible for the manner in which he conducts his office. I think not.
Tomlinson LJ disagreed. On the facts, he did not see that there was a sufficient element of control in the relationship between the Bishop of the Diocese and Father Baldwin at the time when the acts of abuse were alleged to have taken place. There was no evidence of the Bishop entrusting to Father Baldwin some responsibility in respect of the residential home. Tomlinson LJ therefore regarded as “extravagant’ the notion
that a Roman Catholic Bishop owes without more to every member of the Roman Catholic Church resident within his diocese an enforceable duty of care and what is more a duty of undefined ambit. On the basis of the pleaded allegations, I am not sure that the Claimant can for these purposes claim to be in any different position from that of every other member of the Roman Catholic Church within the diocese, whether resident at the home or not.
Permission to appeal has been postponed until the case has been fought out on all factual issues, but this is clearly one for the Supreme Court. Not just because, as Rachit Buch notes, of the “dozens of cases” lining up pending the final decision, but because of the inherent instability of the doctrine of vicarious liability. It rests on policy, and with all such doctrines its application changes over time, determined by changes in circumstances and public perceptions over the generations. The intense media attention given to these sexual abuse cases in the church has no doubt contributed to the expansion of vicarious liability in these particular circumstances. But in future years some other form of outrage will attract similar levels of attention and concern, and the spotlight will move – with possibly open ended implications for damages liability where a member of the public can prove injury.
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