| From: | Christine Beuermann <Christine.Beuermann@utas.edu.au> |
| To: | Neil Foster <Neil.Foster@newcastle.edu.au> |
| CC: | obligations@uwo.ca |
| Date: | 09/11/2011 06:45:50 UTC |
| Subject: | RE: ODG: A new overarching category of vicarious liability? |
Thanks for this Neil. I agree that breach of a
non-delegable duty of care might have been a more appropriate basis of
liability in this case.
One of the biggest problems we have in this area, however, is the
unhelpful terminology being used to describe strict liability for the
wrongdoing of another in tort and the failure of that terminology to accurately
reflect why such liability is being imposed. It’s not surprising
then that courts find it difficult to distinguish between the two.
If we step back from the terminology for a moment, we can see
that what all cases of strict liability for the wrongdoing of another in tort
have in common is authority (given that such liability currently appears
limited to the employment, school, agency and bailment relationships).
Sometimes that authority is vested in the defendant over the
plaintiff and then conferred to a third party. If the third party abuses
that authority, the cases suggest that the defendant who conferred the
authority on the third party will be held liable for the wrongdoing of that
third party. This is the situation, for instance, where a teacher abuses
a student or a priest abuses a child within their congregation (cf Maga).
Such liability responds to the potential for abuse of the conferred authority
and might be called strict liability arising from the conferral of authority
over another person.
In other situations, however, the relationship of authority
exists between the defendant and the third party who wrongfully injured the
plaintiff. This is the situation with employees more generally. The
authority vested in an employer is significant because an employer can exercise
that authority for their own benefit (cf the authority vested in a school which
exists for the benefit of the students), creating a potential conflict between
an employee’s duties under their employment contract and any other
general law obligations or responsibilities the employee might owe. This conflict
can put pressure on an employee to follow their employer’s directions
rather than complying with their obligations and responsibilities at general
law. An employer, for instance, may direct an employee not to take
reasonable safety measures because of the associated costs, putting members of
the public at risk. It is arguably this potential for an employer to
abuse their authority over an employee which triggers strict liability for the
wrongdoing of an employee which occurs in the course of their employment.
The importance of separating out the two forms of strict
liability is that it demonstrates how the two forms of strict liability differ
in scope. Strict liability arising from an employer’s authority
over an employee, for instance, is limited to wrongdoing within an employee’s
course of employment. As a general rule, an employee is only considered
to be acting within the course of their employment when they are acting with
the actual authority of their employer. This is because it is only
when an employee is acting within the actual authority of their employer that
there is any potential for an employer’s exercise of authority over an
employee to create a conflict between the employee’s duties under their
employment contract and any other general law obligations or responsibilities
the employee might owe. In contrast, strict liability arising from the
conferral of authority over another person arguably arises whenever the person
upon whom authority has been conferred is acting within the limits of the apparent
authority. This is because a student, for instance, will deal with a
teacher on the basis of the apparent authority which has been conferred by the
school upon the teacher. It is the limits of the apparent authority
therefore which shapes the power relationship between the person upon whom
authority has been conferred and the plaintiff.
It’s arguable, therefore, that strict liability for the
conferral of authority over another person was a more appropriate basis of
liability in JGE v Diocese of Portsmouth. It doesn’t
matter for these purposes that the priest wasn’t an employee – it was
accepted that the church had conferred authority upon the priest over his
congregation [35].
Cheers
Christine
From: Neil Foster
[mailto:Neil.Foster@newcastle.edu.au]
Sent: Wednesday, 9 November 2011 12:39 PM
To: Jason Neyers
Cc: obligations@uwo.ca
Subject: Re: ODG: A new overarching category of vicarious liability?
Dear Jason and colleagues;
Interesting but unlikely to be upheld on appeal, in my
opinion. I doubt whether it will contribute to the well-being of society or the
legal system in general to have a broad, fuzzy category of "sufficiently
close relationship" at stage 1 of the vicarious liability question, as
well as now in stage 2. As Rob Stevens says at p 267 in his discussion of this
topic in Torts and Rights, whatever the categories that we adopt as
setting up a relationship where the acts of one person can be attributed to
another (or, on the current orthodoxy, where liability for torts of one person
can be sheeted home to another) "what is important is that the rules of
attribution are certain and consistent". Such a broad,
"policy"-based, criterion is anything but certain. (I note that Rob
himself suggests a broad principle on p 269 which might have encompassed this
situation ("wherever one party carries out a task for the benefit of
another and the beneficiary exercises control over the identity and conduct of
the person carrying out the task.."), but whether or not it would be a
good one to adopt in theory, it certainly doesn't represent the law in Australia
at the moment, nor I suspect in England.)
Having some interest in the Law & Religion area, I was
also concerned to note that MacDuff J paid no attention to the long
jurisprudence on the issue of the employment status of clergy- eg in the UK
recently Percy v. Church of Scotland Board of National Mission
(Scotland) [2005] UKHL 73, in Australia Ermogenous v Greek Orthodox
Community of SA Inc [2002] HCA 8; 209 CLR 95. This should at least
have been discussed, I think, though I tend to agree that a Roman Catholic
priest is not an employee- although on the facts the most likely candidate for
employer might have been the local congregation! {Is it really true as MacDuff
J accepts at [29](iii) that priests live from week to week on what the
congregation feel like putting into the plate?? And on whatever he decides to
take out each week?? That's certainly not the way our local church operates.}
From a broader torts perspective, it is also odd that no
attempt was made to discuss the matter as a question of non-delegable duty.
Perhaps because (as we recently discussed here about another case) English
courts don't usually accept that schools owe a non-delegable duty, the
possibility doesn't come to mind. But I would have thought it was at least an
option worth considering whether a church which places clergy into close
relationship with trusting children may not owe a non-delegable duty. (In
Australia, following Lepore, the authoritative view is that an NDD
action is not available in relation to intentional torts, but if one could
overcome that hurdle I would say that NDD looks much more like the sort of
doctrine one would want to apply here.)
Clearly the church ought to be potentially liable in these
sort of cases- I just don't think an arm-waving extension of vicarious
liability (see [36]: "the question of
whether, in justice, the Defendants should be responsible for the
tortious acts of the man appointed and authorised by them to act on their
behalf ") is the way to do it.
Regards
Neil
On 08/11/2011, at 11:59 PM, Jason Neyers wrote:
On behalf of Phillip Morgan:
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.pdf
Refreshingly 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,
--
--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
Neil
Foster
Senior
Lecturer
Newcastle
Law School Faculty of Business & Law
MC158,
McMullin Building
University
of Newcastle Callaghan NSW 2308 AUSTRALIA
ph 02
4921 7430 fax 02 4921 6931