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Neutral Citation Number: [2011] EWHC 2871 (QB) |
|
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Case No: HQ09CX03679 |
IN
THE
HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
08/ 11 /2011 |
B e f o r e :
Mr Justice MACDUFF
____________________
Between:
____________________
Elizabeth-Anne Gumbel QC and Justin Levinson (instructed by Emott Snell & Co Solicitors) for
the
Claimant
Lord Faulks QC and Nick Fewtrell (instructed by CCIA Services Ltd.) for
the
Defendants
Hearing dates: 6 & 7th July 2011
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Mr Justice MacDuff:
- This is
the
determination
of
a preliminary issue.
The
issue to be tried is "whether in law
the
second Defendant may be vicariously liable for
the
alleged torts
of
Father Baldwin". Father Baldwin was a
Roman Catholic
priest. I should make it clear from
the
outset that it has been agreed that, for
the
purposes
of
this litigation,
the
second Defendant stood in
the
place
of the
Bishop
of Portsmouth
at
the
material time.
The
issue is whether
the diocesan
bishop should be held vicariously liable for
the
torts
of the
priest
of
his diocese.
The
Claimant, who is now aged 47 years, claims damages for personal injury. She alleges that she was sexually abused and raped by Father Baldwin (now deceased) at a time when she was resident at
the
Firs Children's Home in Waterlooville, Hampshire between May 1970 and May 1972.
The
Home was operated and managed by
the
First Defendants, a religious order
of
nuns.
The
claimant also makes allegations against
the
First Defendants which will fall to be determined at
the
trial
of
this action; it is not necessary to consider those matters here. There are other issues also to be tried.
The
preliminary issue, however, is concerned only with whether
the
Second Defendant may be responsible for
the
wrongful acts
of
Father Baldwin.
The
First Defendant does not appear. Hereafter I will refer to
the
Second Defendant as
the
Defendant.
The
issue turns upon
the
relationship between Father Baldwin and
the
Defendant.
The
Defendant contends that Father Baldwin was not its employee (nor was
the
relationship "akin to employment") and that vicarious liability cannot attach to
the
relationship which existed between them. It will be necessary to examine
the
nature
of
that relationship. Where I refer hereafter to
the
Defendant, it is to be understood that this is
the
Defendant standing in
the
shoes
of the
bishop.
- Leaving aside liability for
the
acts
of
agents and partners, vicarious liability, in its purest and most common form, is a doctrine which makes an employer responsible for
the
tortious acts
of
an employee, acting within
the
scope (or course)
of
his employment. There are two limbs; a contract
of
employment (or service) and a tortious act arising within
the
scope
of the
employment. Both limbs have given rise to much litigation in recent years.
- Thus, in examining whether party A is vicariously responsible for
the
acts
of
party B, there is a two stage test.
The
first stage involves an inquiry into
the
relationship between A and B; whether it was a relationship (classically employment) to which
the
principles
of
vicarious liability may attach.
The
second involves an inquiry into
the
act or omission
of
B which is in question; whether
the
act was within
the
scope
of the
employment (or other relationship). These are both fact sensitive inquiries "and it is a judgment upon a synthesis
of the
two which is required"; see per Hughes LJ in 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 at para 37.
- It is common ground between
the
parties that I am only concerned with stage one
of the
test. Stage two is for
the
trial judge. I only have to decide whether
the
nature
of the
relationship is one to which vicarious liability may (I emphasise "may") attach.
- However, I cannot consider this issue in isolation. Insofar as a judgment upon a synthesis
of the
two stages is required, I need to look at
the
whole question
of
vicarious liability and
the
way in which
the
law has developed over recent times. It is stage two which has been under scrutiny in most
of the
recent decisions
of the
courts. Indeed, like this case, many
of the
recent authorities have been concerned with criminal conduct. Several
of
them have involved sexual assault by clergymen and others. Although
the
judgments have been concerned with whether
the
actions arose within
the
scope
of the
employment (in cases where employment was not in issue)
the
reasoning behind
the
decisions is entirely relevant to stage one –
the
"relationship" stage.
- What is
the
justification and rationale
of
a doctrine which creates a form
of
strict liability whereby one party, who bears no fault, is made responsible for
the
wrongful act
of
another? There is no precise unanimity between judges (or between academics) about
the
rationale; no single accepted truth. In Viasystems (Tyneside) Ltd
v
Thermal Transfer Ltd and others [2005] EWCA Civ 1151 Rix LJ expressed it in
the
following way.
"
The
concept
of
vicarious liability does not depend on
the
employer's fault but on his role. Liability is imposed by a policy
of the
law upon an employer, even though he is not personally at fault, on
the
basis, generally speaking, that those who set in motion and profit from
the
activities
of
their employees should compensate those who are injured by such activities even when performed negligently. Liability is extended to
the
employer on
the
practical assumption that, inter alia because he can spread
the
risk through pricing and insurance, he is better organised and able to bear that risk than
the
employee, even if
the
latter himself
of
course remains responsible; and at
the
same time
the
employer is encouraged to control that risk" (paragraph 55)
"What has to be recalled is that
the
vicarious liability in question is one which involves no fault on
the
part
of the
employer. It is a doctrine designed for
the
sake
of the
claimant imposing a liability incurred without fault because
the
employer is treated by
the
law as picking up
the
burden
of
an organisational or business relationship which he has undertaken for his own benefit" (paragraph 79)
- At paragraph 55,
the
Lord Justice also noted that
the
courts had been called upon to determine issues upon both limbs and that:
"… over
the
years,
the
tests which have been adopted to answer these issues have developed in a way which has gradually given precedence to function over form".
- Having noted myself that there has been much litigation upon both limbs, I should look at
the
development
of
vicarious liability in recent years.
- Insofar as
the
second limb is concerned (
the
scope
of the
employment) there has been much recent movement. Before 2002, it had appeared to be
the
law that a criminal act by an employee could rarely attach vicarious liability to
the
employer. In Trotman
v
North Yorkshire County Council [1999] LGR 584, it had been held that sexual abuse
of
a pupil by a school master was an act which was committed outside
the
scope
of the
employment; it was not a mode, even an unauthorised mode
of
carrying out
the
employee's duties. Lister
v
Hesley Hall Ltd [2002]
1
AC 215 overturned this decision.
The
House
of
Lords held that
the
company which owned and ran a school was vicariously liable for
the
sexual abuse
of
a pupil by its employee,
the
warden
of
a boarding house. There is now seen to be a "closeness
of
connection" test: whether
the
wrongdoing was closely connected with
the
duties
of the
job.
The
correct test was said to be "whether
the
(employee's) torts were so closely connected with his employment that it would be fair and just to hold
the
employer vicariously liable" (Lord Steyn at [2002]
1
AC 215 paragraph 28). Mere opportunity presented by
the
employment would not be sufficient. Thus vicarious liability would attach to
the
boarding house warden, whose responsibilities included
the
welfare and safety
of
his charges. It would not attach (for example) to
the
gardener or other employee whose job would have no connection with
the
welfare
of the
pupils.
The
"close connection" test has been applied and developed in later cases.
Of
most significance is
the
case
of
MAGA
v The Trustees of the
Birmingham Archdiocese
of the Roman Catholic
Church [2010] EWCA Civ 256.
The
case involved
the
sexual abuse
of the
claimant by a
Roman Catholic
priest.
The
facts were similar, almost identical, to
the
pleaded facts here. In MAGA, however,
the
Defendant conceded that
the
priest could be treated as employee
of the
Archdiocese for
the
purpose
of
that case only and
the
case was defended at stage two. Now
the
Defendant, (albeit not
the
same Defendant though a part
of the
same church) seeks to defend at stage one;
the
concession as to employment is not made. On
the
contrary,
the
nature
of the
relationship is hotly contested. In MAGA,
the
Court
of
Appeal, applying
the
close connection test, held that
the
Defendant was vicariously liable.
- In MAGA, reference was made to two cases in
the
Canadian Supreme Court, Bazley
v
Curry 174 DLR (4th) 45 and Jacobi
v
Griffiths 174 DLR (4th) 71. These cases had been cited with approval also in Lister, where Lord Steyn (at paragraph 27) described
the
judgments as "luminous and illuminating" and "wherever such problems are considered in future in
the
common law world these judgments will be
the
starting point".
- Bazley was also a case
of
sexual abuse. In
the
course
of
her judgment, McLachlin J had surveyed
the
law
of
vicarious liability and summarised her conclusions (paragraph 46) as follows:
"In summary,
the
test for vicarious liability for an employee's sexual abuse
of
a client should focus on whether
the
employer's enterprise and empowerment
of the
employee materially increased
the
risk
of the
sexual assault and hence
the
harm.
The
test must not be applied mechanically, but with a sensitive view to
the
policy considerations that justify
the
imposition
of
vicarious liability – fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate
the
employee's specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because
of the
peculiar exercise
of
power and trust that pervade cases such as child abuse, special attention should be paid to
the
existence
of
a power or dependency relationship, which on its own often creates a considerable risk
of
wrongdoing"
- This passage was cited by Longmore LJ in MAGA (paragraph 86):
"This exposition
of the
law is highly relevant to
the
position
of
(
the
priest) in respect
of
whom there undoubtedly existed a 'power or dependency relationship' with
the
claimant arising from his position as a priest."
- It may be noted that McLachlin J referred to deterrence. Lord Faulks QC, on behalf
of the
Defendant, queried whether deterrence should play any part in
the
rationale
of
vicarious liability, given that a vicariously responsible party is not said to be at fault in any way. How can deterrence then arise? Nevertheless, deterrence is a recurring feature
of
several
of the
recent judgments
of the
courts. It seems to me that
the
concept
of
deterrence is
the
other side
of
a coin which would encourage an employer to choose his employees with care and to foster a spirit
of
safety consciousness; to put in place systems designed to encourage
the
employee to do his job properly and safely. This is
the
deterrence: to deter from appointing
the
wrong person; to deter from adopting a devil-may-care approach to safe systems
of
working or, as Rix LJ expressed it in Viasystems (at paragraph 79 cited above); "
the
employer is encouraged to control that risk". In Bazley McLachlin J referred to
the
employer's being "fairly and usefully charged with
the
management and minimization"
of the
risk.
- This was an iteration
of
what had been said by Watermeyer CJ in Feldman (Pty) Ltd
v
Mall [1945 AD 733, at 741]:
'… a master who does his work by
the
hand
of
a servant creates a risk
of
harm to others if
the
servant should prove to be negligent or inefficient or untrustworthy; that, because he has created this risk for his own ends he is under a duty to ensure that no one is injured by
the
servant's improper conduct or negligence in carrying on his work …'
- It is not surprising that these cases all refer to "employer" "employee" and "employment". First, these cases were all concerned with stage two
of the
test. Employment (that is to say
the
relationship upon which vicarious responsibility was founded) was not in issue. But, second, for many years it had appeared that vicarious liability attached to employment and to no other relationship. "Employment" was a necessary ingredient. A glance at any standard text book on
the
law
of
torts demonstrates
the
point. Where
the
test at stage two was concerned with whether
the
wrongful act had been committed within
the
course
of the
employment,
the
first stage
of the
test was to determine whether or not
the
tortfeasor was in fact employed (or deemed to be employed) by
the
intended defendant. Most
of the
cases on stage one were concerned with whether
the
employee
of
a subcontractor (or a labour-only subcontractor) was to be deemed to be an employee. It may therefore be
of
some interest that Longmore J referred to
the
"position"
of the
priest and not his employment. It is suggested on behalf
of the
Claimant that it was
the
fact that
the
wrongdoer was a priest which was
the
relevant factor and not that he was "employed" as a priest.
- As to stage two
of the
test, I have been referred to other decisions
of the
courts which, in recent times, have adopted and applied
the
"close connection" test.
Of
these decisions,
the
most relevant for my purposes (apart from MAGA) is
the
Judgment
of the
Lords
of the
Judicial Committee
of the
Privy Council in Bernard
v The
Attorney General
of
Jamaica [2004] UKPC 47 where it was held that
the
Attorney General was liable for
the
acts
of
a police officer who, using a pistol, shot
the
Plaintiff at point blank range with no hint
of
justification. That was again a case where employment was not in issue.
The
Board delivered a single speech. Although it was held that
the
Defendant was vicariously liable,
the
Board cautioned against too great an extension
of the
doctrine (see paragraphs
21
and 23).
"Vicarious liability is a principle
of
strict liability. It is a liability for a tort committed by an employee not based on any fault
of the
employer. There may,
of
course, be cases
of
vicarious liability where employers were at fault. But it is not a requirement. This consideration underlines
the
need to keep
the
doctrine within clear limits
The
Board is firmly
of the
view that
the
policy rationale on which vicarious liability is founded is not a vague notion
of
justice between man and man. It has clear limits…….
The
principle
of
vicarious liability is not infinitely extendable" ...my underlining).
- There was also a further citation
of
a part
of the
judgment
of
McLachlin J in Bazley:
"
The
policy purposes underlying
the
imposition
of
vicarious liability on employers are served only where
the
wrong is so connected with
the
employment that it can be said that
the
employer has introduced
the
risk
of the
wrong (and is thereby fairly and usefully charged with its management and minimization).
The
question is whether there is a connection or nexus between
the
employment enterprise and that wrong that justifies imposition
of
vicarious liability on
the
employer for
the
wrong, in terms
of
fair allocation
of the
consequences
of the
risk and/or deterrence"; per McLachlin J at 62 (my underlining)
The
South African case
of
Police
v
Rabie 1986 (
1
) S.A. 117 was another case where employment was not in issue. It was concerned with a police officer who, in pursuit
of
a private vendetta, had maliciously assaulted and arrested an individual. By a majority
the
court found vicarious liability established.
The
judgment
of the
majority was given by Jansen JA:
"By appointing (
the
police officer) as a member
of the
(police) force, and thus clothing him with all
the
powers involved,
the
State created a risk
of
harm to others, viz
the
risk that (he) could be untrustworthy and could abuse or misuse those powers for his own purposes or otherwise, by way
of
unjustified arrest, excess
of
force constituting assault and unfounded prosecution. His acts fall within this purview and in
the
light
of the
actual events it is evident that his appointment was conducive to
the
wrongs he committed. …. in
the
particular circumstances
of the
present case ….
the
State, in view
of the
risk it created should be held liable for (
the
police officer's) wrongs"; per Jansen JA at 134H – 135.
- What then
of the
cases where
the
nature
of the
relationship (stage one) has been under scrutiny? Until recent years,
the
courts concentrated on employment as underpinning vicarious liability. Where that relationship was in doubt,
the
court would look at all
the
circumstances and treat
the
relationship as one
of
employment where certain criteria – not always easy to discern in abstract – were met.
The
court would look at
the
nature
of the
relationship where
the
third party workman was supplied by some other party (an independent contractor) or where he was said to be self employed. In Short
v
JW Henderson (1946) 62 TLR 427 employment was determined by
the
application
of the
"control test". Where a component
of the
relationship was one
of
control
of the
manner
of the
work,
the
relationship was deemed to be one
of
employment. However, in those cases where
the
worker had a high degree
of
skill,
the
so-called control test was adapted to include concepts such as organisation and enterprise; see Stevenson Jordan and Harrison Ltd
v
Macdonald [1952]
1
TLR 101.
The
question was asked: whose were
the
organisation and
the
enterprise? In Ferguson
v
Dawson (Contractors) Ltd [1976]
1
WLR 1213
the
contract between
the
Defendant and
the
workman was expressly not one
of
employment.
The
workman was self employed and was so treated for taxation purposes.
The
court, however, assessed
the
relationship as being one
of
employment, given that he worked under
the
direction
of the
Defendant's foreman. Supervision and organisation as well as control were factors in
the
determination
of the
issue; whether
the
relationship was "deemed employment" or employment pro hac vice.
The
intention
of the
parties was relevant but not determinative; so too
the
manner
of
payment
of
remuneration for
the
work.
- It may be that
the
label is not important.
Of
importance was
the
setting
of the
bounds
of the
relationship upon which vicarious liability could be founded;
the
nature
of the
relationship and
the
features which had to be present before vicarious liability could attach.
- In this case it is conceded by Lord Faulks QC that vicarious liability can be founded on a relationship other than employment. In Viasystems
the
Court
of
Appeal found that two parties could share vicarious responsibility for
the
acts
of
a workman. In Lister there was express reference to
the
possibility that
the
relationship may be other than employment.
"Questions may arise in some cases whether
the
person who committed
the
tort was in such a relationship with another to enable
the
concept
of
vicarious liability on
the
other person to arise"; per Lord Clyde at paragraph 33
The
argument before me has centred upon whether
the
relationship here was "akin" to employment and
the
extent to which
the
Defendant was in a position to exercise control
of
Father Baldwin. I received evidence from
the
Reverend Morgan currently
the
secretary to
the Diocesan Trustees
and Finance Council
of the
Defendant. There was also expert evidence called on behalf
of
both parties upon canon law – with
the
widest measure
of
agreement.
The
following matters are uncontroversial:
(i) Within
the
Diocese
of Portsmouth
, priests are informed
of
their appointments verbally; these are then announced "ad clerum" in a circular letter sent out to
the
clergy. There are no terms and conditions other than those derived from canon law. Vacancies are not advertised and there is no form
of
contract, no offer and acceptance, and no terms and conditions.
The
appointment is subject only to
the
provisions
of
canon law.
(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.
(vi) It seems clear to me that – as Lord Faulks QC submitted – a bishop and priest would not regard their relationship as being one that could be adjudicated upon by
the
civil courts; and Father Baldwin would have been considered as a holder
of
office rather than an employee
of the
Defendants.
- Insofar as
the
Defendants submit that this relationship differed from employment in a number
of
ways, I am able to agree. There are many significant differences;
the
lack
of the
right to dismiss; little by way
of
control or supervision; no wages and no formal contract.
- I have to determine whether vicarious responsibility may attach to
the
relationship between Father Baldwin and
the
Defendants, notwithstanding that it was a relationship which differed in significant respects from a relationship
of
employer and employee. This is not an issue which has previously been decided by
the
courts
of
England and Wales. It has, however, been considered elsewhere. In 2004 in
the
case
of
Doe
v
Bennett and others [2004]
1
SCR 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. Employment was not conceded and both stages
of the
test were at large. There were some differences in
the
factual background.
The
priest had taken a vow
of
obedience to
the
bishop. Also:
"
The
bishop exercises extensive control over
the
priest, including
the
power
of
assignment,
the
power to remove
the
priest from his post and
the
power to discipline him."
In those circumstances,
the
court held that
the
relationship was "akin to employment" and that, in
the
full circumstances
of the
case, it was just to impose liability on
the
bishop.
- In holding that
the
bishop was liable for
the
wrongful actions
of the
priest,
the
Chief Justice said:
"….
the
relationship between
the
tortfeasor and
the
person against whom liability is sought must be sufficiently close. Second,
the
wrongful act must be sufficiently connected to
the
conduct authorised by
the
employer"; per McLachlin CJ at paragraph 20; my emphasis.
- Is this a proper analysis
of the
law; and is it one which I should follow? If so, how should I apply it in this case? On behalf
of the
Defendants, Lord Faulks QC submits (i) that
the
case is distinguishable on
the
facts. In that case there was, it seems, extensive control and
the
right
of
removal from office; (ii) that
the
authority is (
of
course) not binding in this jurisdiction; and (iii) that
the
reasoning in that case does not strike a chord with
the
reasoning in decided cases in England. I understand
the
first submission; I agree with
the
second; I disagree with
the
third.
- I have no hesitation in adopting that approach. 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. As
the
Chief Justice said in Doe at paragraph 27:
"
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";
- I am satisfied, as I have already noted, that
the
relationship between Father Baldwin and
the
Defendants was significantly different from a contract
of
employment; no real element
of
control or supervision, no wages, no formal contract and so on. But are those differences such that
the
Defendants should not be made responsible for
the
tortious acts
of the
priest acting within
the
course
of
his ministry? There are, it seems to me, crucial features which should be recognised. 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.
- Why, one may ask, does it matter that some
of the
features
of
a classic contract
of
employment do not apply here? What is
the
relevance to
the
concept
of
vicarious liability, for example,
of the
lack
of
a formal agreement with terms and conditions; or
of the
manner
of
remuneration; or
of the
understanding that
the
relationship was not subject to adjudication by
the
secular courts? Those features may have relevance in a different context, but not to
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.
- Thus I have reached
the
conclusion that
the
answer to
the
question posed as
the
preliminary issue is "yes". In doing so I am aware that one
of the
justifications
of
vicarious responsibility lies within
the
notion that
the
employer is in a position to control
the
work – whether in
the
manner
of
its execution or otherwise.
The
employer also has
the
right to hire and fire, whereas here there was just
the
right to appoint. But I am also conscious
of the
dicta in
the
Canadian cases
of
Bazley and Jacobi which have been cited with approval within this jurisdiction: also
of
Rix LJ in Viasystems, which I have quoted earlier in this Judgment. These, it seems to me, are relevant to
the
whole
of the
test, not just to
the
second stage. I am also conscious
of the
need to keep
the
doctrine within clear limits – and that
the
doctrine is not "infinitely extendable".
- In MAGA, Lord Neuberger MR noted
the
same thing. He gave a number
of
reasons – seven in all – for determining that
the
Defendants in that case should be held vicariously responsible for
the
priest's sexual assaults. Those reasons (between paragraphs 45 and 50) included
the
wearing
of
clerical garb and
the
adoption
of the
church's moral authority, as well as
the
use
of
church functions and church premises as an aid to wrongdoing. In my judgment, these considerations do not go just to
the
test at stage two, but have a much wider relevance. They are equally valid whether or not
the
relationship was strictly one
of
employment. To adapt
the
principles distilled from Viasystems (per Rix LJ) and Bazley (per McLachlin J)
the
activities
of
Father Baldwin had been set in motion by
the
Defendants in pursuance
of
a relationship into which
the
Defendants had entered for their own benefit. It was their empowerment
of the
priest which materially increased
the
risk
of
sexual assault,
the
granting
of the
power to exploit and misuse
the
trust which
the
Defendants had granted to him. It was
the
Defendants who had introduced
the
risk
of
wrongdoing.
- I can also adapt
the
words
of
Jansen JA in Rabie. By appointing Father Baldwin as a priest, and thus clothing him with all
the
powers involved,
the
Defendants created a risk
of
harm to others, viz
the
risk that he could abuse or misuse those powers for his own purposes or otherwise.
- However, it is
the
reasoning
of the
Canadian Supreme Court in Doe
v
Bennett. from which I derive most assistance. This case was decided after Lister (where
the
earlier Canadian cases had been cited with approval). It seems that it was not considered by
the
Court
of
Appeal in MAGA. In my judgment, Doe adopted
the
same reasoning as
the
earlier cases. It is a case which sits very comfortably with
the
reasoning in Viasystems as well as MAGA and it reinforces
the
point that
the
two stages
of the
test are not to be determined in isolation;
the
overall test is a synthesis
of the
two stages. Between paragraphs 28 and 32
the
Chief Justice gave reasons for reaching
the
conclusion that
the
Diocese should be liable. These are echoed in
the
seven reasons given by Lord Neuberger MR in MAGA.
- I have thus reached
the
conclusion that it is
the
nature and closeness
of the
relationship which is
the
test at stage one. This close connection may be easier to recognise than to define.
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. Several
of the
factors considered in MAGA apply clearly to both stages. There is obvious overlapping. This is not surprising as it is a judgment upon a synthesis
of the
two stages which is required.
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.
- In this case,
the
empowerment and
the
granting
of
authority to Father Baldwin to pursue
the
activity on behalf
of the
enterprise are
the
major factors. In my judgment, whether or not
the
relationship may be regarded as "akin to employment"
the
principal features
of the
relationship dictate that
the
Defendants should be held responsible for
the
actions which they initiated by
the
appointment and all that went with it. Accordingly, this preliminary issue is determined in favour
of the Claimant.
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URL: http://www.bailii.org/ew/cases/EWHC/QB/2011/2871.html