List members might perhaps be interested in two recent decisions of the English Court of Appeal:

In Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, the claimant sought to hold the Archdiocese vicariously liable for the torts of its employee, a priest, whom the claimant claimed had sexually abused him in the '70s. Somewhat unusually, the claimant himself was not a Roman Catholic, but had apparently been befriended by the priest while admiring the latter's car and doing various odd jobs. After holding that the claim was not time-barred under the Limitation Act 1980 due to the claimant being under a "disability", the Court of Appeal then went on to examine whether the Archdiocese could be held vicariously liable for the priest's torts under the principles laid down by the House of Lords in Lister v Hesley Hall Ltd. 

Lord Neuberger MR's judgment contains some interesting observations to the effect that a priest would always be in the course of employment for the purposes of vicarious liability, and that that course of employment included evangelisation, so it was irrelevant that the claimant himself was not Roman Catholic.

Longmore LJ's judgment appears to move further away from Lister, as he holds that it is not essential that there must have been an undertaking of responsibility by the employer before vicarious liability can be imposed, as Lister appears to have suggested. 

The overall effect of Maga, therefore, seems to be a loosening or widening of the vicarious liability doctrine, and a signal that religious organisations can expect to find themselves saddled with expensive lawsuits if they do not prevent sexual abuse by their spiritual leaders/employees.

In Connor v Surrey County Council [2010] EWCA Civ 286, the Court of Appeal was faced with a rather unusual set of facts. The claimant was the head-teacher of a multicultural school and claimed damages against her employer, the Council, alleging that it had breached its duty of care to her, thereby causing her to suffer psychiatric damage. This unusual "stress at work" case arose because the claimant had been subject to a campaign of harassment and intimidation by two members of the school's governing body, and she argued that the Council had breached its duty to her in not intervening sooner and instead commissioning an inquiry into the governors' allegations of institutionalised racism against her and her staff.

Counsel for the Council had, among other things, argued that the case was non-justiciable because it involved a public authority (the Council) exercising its discretion in policy matters, along the lines of X v Bedfordshire CC and subsequent cases.

Laws LJ, in dismissing the appeal of the Council, noted that, unlike those cases (which he discussed quite ably and perceptively), which concerned whether a duty of care was established in the course and by virtue of a public authority's exercise of its statutory powers/discretion, the present case concerned the much rarer question of whether a pre-existing duty of care (between employer and employee) had been fulfilled by the public authority's exercise of its statutory powers/discretion. 

Laws LJ held that in the latter case, the law will require the duty-owner to fulfil his pre-existing private law duty by the exercise of a public law discretion, but only if that may be done consistently with the duty-owner's full performance of his public law obligations. It seems, therefore, that on Laws LJ's approach there can be no question of private law liability where private law demands one thing and public law demands another, for the public law imperative is dominant.

Sedley LJ agreed that in this case, the Council's public and private law duties were consonant, but reserved his judgment on what would happen in a case where they pointed in different directions. 

Thomas LJ agreed that the Council's public and private law duties were in tandem in respect of the failure to intervene earlier, but that they were not in respect of the decision to commission an inquiry, but his dissent on the latter issue made no difference to the outcome of the case. 

Connor is an interesting departure from the usual "public body liability" cases, and it is indeed surprising that the legal issue it raises does not seem to have been considered in much detail before. I am not as sanguine as Laws LJ that such cases will be rare in the future, however.

Best regards,

Colin