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JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust, Court of Appeal, 12 July 2012

1 August 2012
The issues

Child sexual abuse – employees – ministers of religion – Roman Catholic Church – vicarious liability

The facts

The claimant who at six and half years of age was placed in a children’s home run by the nuns of a convent which was subject to the direction and control of the English Province of Our Lady of Charity, the first defendant. There she remained for two years before being returned to her mother. The claimant alleged that whilst she was there she was beaten by the nun in charge of the home and claimed damages from the Sisters of Charity. The claimant further alleged that Father Baldwin sexually abused and assaulted her. The claimant claimed that the Diocesan Trust “operated and/or were responsible for” churches in the diocese and that “all material times Father Wilfred Baldwin was the parish priest of the church” and that “accordingly Father Baldwin was in the service of the Second Defendant and subject to their direction and control”. It was stated that Father Baldwin was regularly invited or permitted by the nuns to visit the children’s home and he did so in the course of his duties as a priest for the second defendant. It was whilst the claimant was a resident at the home and as such a parishioner of the church that Father Baldwin abused the claimant.

There is little difference between the bishop’s control over the priest and the health Trust’s control over the surgeon: neither is told how to do the job but both can be told how not to do it

The particulars went on to allege that for present purposes that the sexual abuse and assaults perpetrated by Father Baldwin were committed in the course of or were closely connected with Father Baldwin’s employment duties and that, in the premises, the second defendant is vicariously liable for the sexual abuse by Father Baldwin and for the injury and damage which the claimed suffered as a result.

The defendants denied that Father Baldwin abused or assaulted the claimant. In addition they argued that although it is admitted that the parish church was part of the Roman Catholic Diocese of Portsmouth, the second defendant denied that they ever managed, operated or were responsible for the church; the responsibility resting at all material times with the parish priest in particular “neither they nor the incumbent bishop had the power to remove Father Baldwin from the priesthood … [or] his office again his will other than in accordance with the process set out in the Code of Canon Law (which requires proof of grave cause under canon law) nor any power to give directions as to how that office was to be carried out … the Second Defendant and/or incumbent bishop could only issue guidelines for the whole Diocese through Episcopal decrees”.

It was therefore denied that Father Baldwin was in service of the second defendants; he was at all times following his vocation and calling as a priest and as such the second defendants could not be vicariously liable for the acts or omissions of priests in the diocese: a priest is the holder of an office not an employee of the second defendant.

The question before the court was whether the relationship between the priest and the church is such that the principle of vicarious liability may attach if tortious acts of the priest were within the scope of the relationship.

The decision

Accepting that vicarious liability involved the synthesis of two elements; stage 1 being the relationship between employer and employee and stage 2 whether the act was within the scope of the employment. The test for stage 1 for an employer to be vicariously liable is that it has to be shown a founded relationship other than employment, and therefore whether the relationship was ‘akin to employment’. The test for stage 2 was whether the employees tort was so closely connected with his employment that it would be just and fair to hold the employer vicariously liable.

The law on vicarious liability had moved beyond the questions of contracts of service. When considering the control test, the priest is appointed to his office subject to the oversight of the Bishop and of any diocesan law and regulations but the priest decides for himself how to run his parish he operates within a pre-existing framework of rights and obligations set out in the Code of Canon Law. Nevertheless, he is ultimately subject to the sanctions and control of his bishops.

There is little difference between the bishop’s control over the priest and the health Trust’s control over the surgeon: neither is told how to do the job but both can be told how not to do it. Control should be given a wider meaning than whether the employer has the level power to control how the employee carries out his work. It should be viewed more in terms of whether the employee is accountable for the way he does the work so as to enable the employer to supervise and effect improvements in performance and eliminate risks of harm to others. The Roman Catholic Church may not be a legal personae but it does exist; the Pope in the head office, with is ‘regional offices’ with the appointed bishops and with ‘local branches’, their parishes with their appointed priests. This looks like a business and operates like a business. Its objective is to spread the word of God. The priest has a central role in meeting that target.

Therefore what about the entrepreneur test; is the priest more like an independent contractor than that of an employee? The priest is not directly paid a salary but is dependant on what he can take from the collections given at Mass but the bishops should also, “either individually for their own diocese … [make] due provision for the decent support of those who hold or have held any office in the serving of God”. Lord Justice Ward noted that such provisions “smacks a bit more like being paid a wage”. Father Baldwin may not quite match every facet of being an employee but he is very close to it.

As such Father Baldwin is more like an employee than an independent contractor. He has a relationship with his bishop which is close enough and so akin to employer/employee as to make it just and fair to impose vicarious liability. Applying the control test, a priest was subject to no direct control in the sense of the bishop checking what he did every single say, but there was a level of control in the sense that if certain things did not happen then action could be taken. His position was akin to being paid a wage and certainly did not resonate with being an entrepreneur. The relationship was akin to employment within the meaning which an ordinary person would give the words applied. He was in a relationship with his bishop which was close enough sufficient akin to that of employer to employee to make it just and fair to impose vicarious liability.

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