Dear All,
The English High Court has given judgment on a preliminary point in JGE v Diocese of Portsmouth, the first case in which an English Court has been specifically asked to answer the question of whether a Diocesan Bishop of the Roman Catholic Church can be vicariously liable for the acts of a priest within the diocese. In other cases this point has been assumed or conceded. The Court concluded that the relationship was sufficient to trigger vicarious liability.
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/jge-judgment.pdfRefreshingly the Court moves away from simply discussing whether or not a Priest is an employee. Too often discussions in textbooks, and judgments on the relationships which can trigger vicarious liability focus (to the detriment of other categories) on the division between employees and independent contractors. The High Court has moved away from this and has introduced a new "close connection" test. This test can be used to determine whether a relationship between two parties is sufficient to trigger vicarious liability. This draws on the authorities relating to the second close connection test, the test of whether particular acts committed by the tortfeaser are sufficiently close to the relevant relationship to trigger liability.
The evidence before the Court was such that the Priest could not be considered an employee:
"(ii) There is effectively no control over priests once appointed. Within the bounds of canon law, a priest is free to conduct his ministry as he sees fit, with little or no interference from the bishop, whose role is advisory not supervisory. A bishop has a duty of vigilance but is not in a position to make requirements or give directions. Although I was told that a parish visit would be every five years, it could have been more frequent. The bishop had no power of dismissal. Dismissal from office would have to be effected through the church in Rome."
"(iii) At the time of these events, priests did not receive any financial support from the Diocese. Each parish was responsible for generating sufficient income to support its parish priest. Remuneration came mainly from the collection plate. The priest would withdraw the funds required to pay for his basic living expenses. There was no fixed amount payable and the priest would take what he decided was appropriate. Father Baldwin was considered to be an office holder by the Inland Revenue and was so treated for income tax and national insurance purposes."
"(iv) There is a joint statement of the canon law experts; and there is little between them. Within each diocese is a bishop whose appointment is from Rome. The bishop appoints a priest to each parish within the diocese. The bishop must exercise Episcopal vigilance. There is clearly some element of control within this, although there is nothing in the way of penalty or enforcement; the purpose is to oversee and advise. The bishop may only redeploy the priest in another parish if the latter consents."
"(v) There are a number of differences between the relationship and the standard contract of employment. The priest owes the bishop reverence and obedience but he exercises his ministry as a co-operator and collaborator rather than as someone who is subject to the control of his superior. There are various requirements made of the priest by canon law with provisions as to prescribed penalties; but the experts agree that "these are not akin to those seen in situations of managerial supervision in secular employment". Matters such as duties, financial support and time away from the parish are left to the general provisions of canon law."
MacDuff J agreed the relationship differed from employment in a number of ways, the lack of the right to dismiss; little by way of control or supervision; no wages and no formal contract. He then went on to examine Doe v Bennett (a Canadian decision where the evidence on canon law differed). He considered that:
"There is a "close connection test" at both stage one and stage two. 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". Clearly a relationship of employer - employee will meet this test with ease; but other relationships will also qualify."
He concluded that the relationship of Diocesan Bishop and Priest is sufficient:
"Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused."
In his examination of the issue he drew upon the case of Maga (for criticisms see P Morgan "Distorting Vicarious Liability" (2011) 74(6) Modern Law Review 932-946), and specifically invoked the material increase in risk approach, and the idea of introduction of the risk of wrongdoing as a justification for his conclusion. He also drew on Rabie, a case which contradicts a number of other common law decisions.
He recognised that this close connection test is easier to recognise than define and stated that: "The court will look carefully at the full nature of the relationship. All the surrounding facts and circumstances are to be considered. These will include many of the matters which are of relevance also at stage two."
Further guidance was set out:
"Of particular relevance to stage one will be the nature and purpose of the relationship: whether tools, equipment, uniform or premises were provided to assist the performance of the role; the extent to which the one party has been authorised or empowered to act on behalf of the other; the extent to which the tortfeasor may reasonably be perceived as acting on behalf of the authoriser. This is not an exhaustive list. Every case will be fact specific and other factors will become apparent as and when they occur. The extent to which there is control, supervision, advice and support will be of relevance but not determinative. Where the tortfeasor's actions are within the control and supervision of the third party, the relationship will be the closer. Control is just one of the many factors which will assist a judge to the just determination of the question. That question will be whether on the facts before the court, it is just and fair for the defendant to be responsible for the acts of the tortfeasor - not in some abstract sense, but following a close scrutiny of (i) the connection and relationship between the two parties and (ii) the connection between the tortious act and the purpose of the relationship / employment / appointment."
This would appear to be an attempt to create a new overarching category of vicarious liability.
Kind regards,