JGE V THE ENGLISH PROVINCE OF OUR LADY OF CHARITY (1) THE TRUSTEES OF THE PORTSMOUTH ROMAN CATHOLIC DIOCESAN TRUST [2011] EWHC 2871 (QB)
FACTS:-
The Claimant claimed damages for personal injury that she suffered when she was sexually abused by a priest, during a time when she was resident at the Firs Children’s Home in Hampshire between May 1970 and May 1972. The Claimant was at the time of this hearing 47 years of age.
The home was operated and managed by a religious order of nuns, the First Defendants. This hearing was concerned with the preliminary issue of whether the Second Defendant was responsible for the wrongful acts of the priest.
JUDGEMENT:-Mr Justice Macduff considered the doctrine of vicarious liability. There was a two stage test:-
· An inquiry into the relationship between A and B; whether it was a relationship to which the principles of vicarious liability might attach.
· Whether the act or omission of B was within the scope of the employment.
Both were fact sensitive enquiries, but the court was only concerned here with the first test. The second test for was for the trial judge. Nonetheless Macduff J considered that he could not consider this first test in isolation. He needed to look at the way in which vicarious liability had developed in these cases.
He quoted from the following cases:-
· Various Claimants, the Catholic Child Welfare Society and Others v the Institute of the Brothers of the Christian Schools and Others [2010] EWCA Civ 1106
· Viasystems (Tyneside) Ltd v Thermal Transfer Ltd and others [2005] EWCA Civ 1151
· Lister v Hesley Hall Ltd [2002] 1 AC 215
· MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
· Bazley v Currey 174 DLR (4th) 45
· Jacobi v Griffith 174 DLR (4th) 71
· Feldman (Pty) Ltd v Mall [1945] AD 733
· Bernard v The Attorney General of Jamaica [2004] UKPC 47
· Police v Rabie 1986 (1) S.A. 117
These cases were all concerned with the second stage of the test. Employment was not an issue. In relation to the first stage of the test, most of the cases were concerned with whether the employee of a sub contractor was deemed to be an employee.
In Short v JW Henderson (1946) 62 TLR 427 employment was determine by the application of the control test. That control test was adapted to include concepts such as organisation and enterprise (Stevenson Jordan and Harrison Ltd v Macdonald [1952] 1 TLR 101. In the case of Ferguson v Dawson (Contractors) Ltd [1976] 1 WLR 1213 the contract between the Defendant and the workman rested on factors such as supervision and organisation as well as control. The intention of the parties was relevant but not determinative, so too the manner of payment of remuneration for the work.
In this case evidence had been received from experts on canon law. The following matters were agreed:-
· There were no terms and conditions for priests within the Diocese of Portsmouth, nor any contract. The appointment was only subject to canon law.
· There was no control over priests once appointed. Only Rome could dismiss the priest.
· There was no fixed remuneration and the priest took whatever he needed from the collection plate. The priest was considered to be an office holder by the Revenue.
· The bishop was able to oversee and advise, but could not effect any enforcement or penalty, and could not move the priest without the priest’s consent.
· Matters such as duties, financial support and time away from the parish were left to the general provisions of canon law. They were not akin to secular employment.
· A bishop and a priest would not regard their relationship as subject to the civil courts.
However in the Canadian case of Doe v Bennett and Others [2004] ISCR 436, the Supreme Court of Canada decided that a bishop was vicariously liable for the actions of a priest who had sexually abused boys within his parish. There was extensive control and the right of removal from office. The court held that the relationship was akin to employment, and therefore it was just to impose liability on the bishop.
Macduff J said that there was a close connection test at both stage one and stage two of the test. In Doe the Chief Justice of the Supreme Court of Canada had said:-
“The priest is reasonably perceived as an agent of the diocesan enterprise. The relationship between the bishop and the priest is sufficiently close. Applying the relevant test to the facts, it is also clear that the necessary connection between the employer-created or enhanced risk and the wrong complained of is established.”
MacDuff said that that the priest was appointed by and on behalf of the Defendants, to do their work. He was given the full authority of the church, and provided with the premises and vestments. He was directed into the community and given free rein to act as representative of the church.
The absence of a formal contract might apply in a different context, but not to the question of whether in justice, the Second Defendant should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf. In addition, by appointing the priest, the Second Defendant had created a risk of harm to others.
It was the nature and the closeness of the relationship which was the correct test at stage one. Of particular relevance would 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 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. That was not an exhaustive list. Control, supervision, advice and support were of relevance but not determinative. The question would be whether on the facts before the court, it was 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 tortuous act and the purpose of the relationship/employment/appointment.
Consequently there would be a finding that there would be an employment relationship between the Second Defendant and the priest.
FACTS:-
The Claimant claimed damages for personal injury that she suffered when she was sexually abused by a priest, during a time when she was resident at the Firs Children’s Home in Hampshire between May 1970 and May 1972. The Claimant was at the time of this hearing 47 years of age.
The home was operated and managed by a religious order of nuns, the First Defendants. This hearing was concerned with the preliminary issue of whether the Second Defendant was responsible for the wrongful acts of the priest.
JUDGEMENT:-Mr Justice Macduff considered the doctrine of vicarious liability. There was a two stage test:-
· An inquiry into the relationship between A and B; whether it was a relationship to which the principles of vicarious liability might attach.
· Whether the act or omission of B was within the scope of the employment.
Both were fact sensitive enquiries, but the court was only concerned here with the first test. The second test for was for the trial judge. Nonetheless Macduff J considered that he could not consider this first test in isolation. He needed to look at the way in which vicarious liability had developed in these cases.
He quoted from the following cases:-
· Various Claimants, the Catholic Child Welfare Society and Others v the Institute of the Brothers of the Christian Schools and Others [2010] EWCA Civ 1106
· Viasystems (Tyneside) Ltd v Thermal Transfer Ltd and others [2005] EWCA Civ 1151
· Lister v Hesley Hall Ltd [2002] 1 AC 215
· MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
· Bazley v Currey 174 DLR (4th) 45
· Jacobi v Griffith 174 DLR (4th) 71
· Feldman (Pty) Ltd v Mall [1945] AD 733
· Bernard v The Attorney General of Jamaica [2004] UKPC 47
· Police v Rabie 1986 (1) S.A. 117
These cases were all concerned with the second stage of the test. Employment was not an issue. In relation to the first stage of the test, most of the cases were concerned with whether the employee of a sub contractor was deemed to be an employee.
In Short v JW Henderson (1946) 62 TLR 427 employment was determine by the application of the control test. That control test was adapted to include concepts such as organisation and enterprise (Stevenson Jordan and Harrison Ltd v Macdonald [1952] 1 TLR 101. In the case of Ferguson v Dawson (Contractors) Ltd [1976] 1 WLR 1213 the contract between the Defendant and the workman rested on factors such as supervision and organisation as well as control. The intention of the parties was relevant but not determinative, so too the manner of payment of remuneration for the work.
In this case evidence had been received from experts on canon law. The following matters were agreed:-
· There were no terms and conditions for priests within the Diocese of Portsmouth, nor any contract. The appointment was only subject to canon law.
· There was no control over priests once appointed. Only Rome could dismiss the priest.
· There was no fixed remuneration and the priest took whatever he needed from the collection plate. The priest was considered to be an office holder by the Revenue.
· The bishop was able to oversee and advise, but could not effect any enforcement or penalty, and could not move the priest without the priest’s consent.
· Matters such as duties, financial support and time away from the parish were left to the general provisions of canon law. They were not akin to secular employment.
· A bishop and a priest would not regard their relationship as subject to the civil courts.
However in the Canadian case of Doe v Bennett and Others [2004] ISCR 436, the Supreme Court of Canada decided that a bishop was vicariously liable for the actions of a priest who had sexually abused boys within his parish. There was extensive control and the right of removal from office. The court held that the relationship was akin to employment, and therefore it was just to impose liability on the bishop.
Macduff J said that there was a close connection test at both stage one and stage two of the test. In Doe the Chief Justice of the Supreme Court of Canada had said:-
“The priest is reasonably perceived as an agent of the diocesan enterprise. The relationship between the bishop and the priest is sufficiently close. Applying the relevant test to the facts, it is also clear that the necessary connection between the employer-created or enhanced risk and the wrong complained of is established.”
MacDuff said that that the priest was appointed by and on behalf of the Defendants, to do their work. He was given the full authority of the church, and provided with the premises and vestments. He was directed into the community and given free rein to act as representative of the church.
The absence of a formal contract might apply in a different context, but not to the question of whether in justice, the Second Defendant should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf. In addition, by appointing the priest, the Second Defendant had created a risk of harm to others.
It was the nature and the closeness of the relationship which was the correct test at stage one. Of particular relevance would 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 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. That was not an exhaustive list. Control, supervision, advice and support were of relevance but not determinative. The question would be whether on the facts before the court, it was 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 tortuous act and the purpose of the relationship/employment/appointment.
Consequently there would be a finding that there would be an employment relationship between the Second Defendant and the priest.