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Court of Appeal

16 July 2012

Vicarious Liability Extended - Where next?

"The doctrine of vicarious liability does give rise to a clash of two broad policies upon which the law of torts is founded, one that there ought to be an effective remedy for the victim of anothers wrongful act, and the other that the Defendant should not generally be held liable unless he was at fault. Only policy considerations can explain the triumph of the former of the latter. Identifying the relevant strands of policy and evaluating their importance is not straightforward" so said Lord Justice Ward in the Court of Appeal judgement on 12 July 2012 in the case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust.

Facts

The claimant alleged that she was sexually abused and assaulted by a Catholic Priest; Father Baldwin. He came into contact with her when regularly invited or permitted by the nuns who ran the childrens home to visit. It was alleged on the claimants behalf that the sexual abuse and assaults were committed and in the course of or were so closely connected with Father Baldwins employment/duties that the Trustees of the Portsmouth Roman Catholic Diocesan Trust (the defendants) were vicariously liable for that sexual abuse and for the injury and damage which flowed from it.

The issues to be decided 

At a much earlier stage in the litigation, it had been ordered that the preliminary issue was whether, in law, the Defendant might be vicariously liable for the alleged torts of Father Baldwin. This was unusual. Ordinarily, when a preliminary issue is directed there is an agreed statement of the primary assumed facts. Here there was not even agreement as to whether Father Baldwin was the Priest for the relevant parish at the time.

The parties accepted that the doctrine of vicarious liability involved the synthesis of two elements, or stages:

  1. whether the relationship between Father Baldwin and the defendant was one to which the principals of vicarious liability would apply, and
  2. whether the acts or omissions complained of were within the scope of the employment

Their Lordships expressed a significant amount of dissatisfaction about the preliminary issue that led to them having to deal with the first questions 1 in isolation. As Ward, LJ commented "I am far from convinced the trying of preliminary issue is the best way to deal with questions of these sorts. Since both stage 1 and stage 2 are fact sensitive… it would have been far better to have dealt with the two stages together."

Nevertheless their Lordships executed the task asked of them in a lengthy and learned Judgment bringing in Canadian Supreme Court cases, examining the concepts of dual vicarious liability and non-delegable duties in this context and recognising that this decision might have significant implications elsewhere, citing for example cases of commercial fraud which had relied on principals set out in abuse cases. The judgment even included a hint of Gilbert & Sullivan.

Findings

It was accepted that Father Baldwin was not employed by the defendant.

The question the Court of Appeal addressed was whether the relationship between Father Baldwin and the defendant was akin to employment so as to render the defendant vicariously liable for his actions. Their Lordships founds by a majority of 2 to 1 that the relationship between the defendant and Father Baldwin was so close in character to a relationship of employee/employer that it would be just and fair to hold the defendant vicariously liable.

Justice and fairness were an important check in this case and were there to strike a proper balance between the unfairness to the employer of imposing the strict liability and the unfairness to the victim of leaving her without a full remedy with the harm caused. The court was unhappy about having to deal with this issue by way of preliminary issue. As Lord Justice Davies put it "… in cases of this kind… in terms of facts, there can be a significant degree of overlap between the first stage and the second stage… thus it may strongly be queried, with hindsight, whether this was an appropriate occasion for a preliminary issue to be directed in this particular case".

Their dissatisfaction with this state of affairs was starkly illustrated by the addendum to their Judgment. Permission to appeal to the Supreme Court was refused. Their Lordships observed "Rather than deal with the case decided as a preliminary issue The Supreme Court may prefer to wait until they have a case fought out on all factual issues with a Judgment at the conclusion of a fully contested trial".

So where does that leave us?

This decision will be of relevance to claims concerning foster cares, healthcare providers, subcontractors and beyond. The Court of Appeal quoted an article by Phillip Morgan; "In the field of vicarious liability, where cases concerning abuse litigation have led, cases involving commercial concerns have followed" citing a commercial fraud case.

To establish vicarious liability in future claimants will have to prove that the relationship between the defendant ( the one with the money/insurance) and the tortfeasor ( the one who caused all the problems) is so close it can fairly said to be akin to employment. Is the tortfeasor accountable to the defendant?

In my view it is a shame that permission to appeal was refused, particularly given that the judgment was not unanimous. We have been launched into a period of uncertainty and challenge. Who knows whether and when certainty will reign again, and how far the vicarious liability ripples will travel.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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