The Court of Appeal’s decision in JGE v English Province of Our Lady of Charity & Trustees of the Portsmouth Roman Catholic Diocesan Trust confirms that the traditional limits on the scope of vicarious liability are being broken down. This will open the door for abuse claims to be brought against the Catholic Church. It will also have significant repercussions for claims in the commercial sphere.
The claimant alleges that she was sexually abused by Father Baldwin (who is now dead) when she was resident at a children’s home run by the first defendants, a religious order of nuns. She claims against them and against the second defendants, who, standing in the shoes of the Bishop of Portsmouth, appointed Father Baldwin to his office as a Roman Catholic priest within the Diocese of Portsmouth.
The test for vicarious liability
Vicarious liability, which is imposed irrespective of fault on the part of the defendant, requires satisfaction of a two-stage test. Stage one concerns the relationship between the defendant and the tortfeasor. Stage two asks whether the act in question was within the scope of the tortfeasor’s employment by the defendant.
The Court of Appeal was concerned only with stage one, decided as a preliminary issue. It was unhappy about this as it felt that the two parts of the test were interlinked. It was even less happy to be asked to decide the issue without an agreed statement of facts.
The decision on appeal
The court upheld the decision below that the Bishop of Portsmouth could in principle be held vicariously liable for the torts of a priest of his diocese, even though the relationship differed in significant respects from a relationship of employer and employee. Tomlinson LJ dissented. Responding to the claimant’s submission that the test should be whether it is fair that the person able to pay should be held liable, he said “I do not believe that the law is so unprincipled”.
Principle and policy
Tomlinson LJ put his finger on the problem here, namely the lack of a principled foundation for the concept of vicarious liability. It is worryingly easy in 2012 to agree with Professor Glanville Williams’ comment, made in 1957, that “vicarious liability is the creation of many judges who have different ideas of its justification or social policy, or no idea at all”.
The Court of Appeal acknowledged this problem head-on. Stage one of the test, with its reliance on an employment relationship, fails to cope not only with the relationship between the Catholic Church and its priests but also with the emergence of a different type of flexible and fragmented labour market.
The House of Lords in Lister v Hesley Hall Ltd also confused the issue by failing to agree on a single version of stage two of the test which concerns the connection between the tortious acts and the employment. It would have been simpler had they decided that the employers of the abusive school warden were personally liable for his acts because they owed the pupils a non-delegable duty of care to look after them. Earlier this year, in Woodland v Essex County Council, Laws LJ favoured this approach as a matter of policy in his powerful dissenting judgment.
The Court of Appeal recognised the importance of the decision in JGE for claims in the commercial sphere. The rise of a new type of flexible workforce, with no continuity of employment or location and subject to minimal supervision, poses difficulties for claimants needing to establish vicarious liability against an employer. The Supreme Court needs to address these issues. We are waiting for its judgment on the stage two test in Various claimants v Catholic Child Welfare Society but may have to wait longer for a review of stage one. The Court of Appeal refused permission to appeal in the present case, suggesting that it would be better for the Supreme Court to address these issues in a case decided on the facts.