Distorting Vicarious Liability

AuthorPhillip Morgan
Published date01 November 2011
Date01 November 2011
Distorting Vicarious Liability
Phillip Morgan*
The note considers the decision of the Court of Appeal in Maga vTheTrustees of the Birmingham
Archdiocese of the Roman Catholic Church and analyses the application of the status based risk
approach to vicarious liability in that case. It considers its application outside of the area of clerical
sexual abuse, and also the role in vicarious liability of job conferred status which materially
increases the risk of the commission of a tort, or helps to facilitate a tort.
To make a diocese liable for a priest’s acts of abuse,the Court of Appeal in Maga v
The Trustees of the Birmingham Archdiocese of the Roman Catholic Church1(Maga),
attempted to introduce a paradigm shift to the law of vicarious liability: a
status-based risk test.This test,which is of potentially broader application than cases
of clerical abuse, comes dangerously close to introducing employer’s strict liability
for all torts committed by an individual whose job-conferred status materially
increases the risk of the commission of a tort, or helps to facilitate their tort.This
contradicts previous authority, and fails to appreciate that job-conferred status may
be carried outside the workplace and working hours, and further that status is not
a universal concept.The court also failed to appreciate that a duty to evangelise is
an unsuitable hook on which to hang vicarious liability.The desire to compensate
is understandable,2but the correct result would be to hold the Archdiocese in
breach of a direct duty of care to the claimant, and not to distort the law of
vicarious liability. Direct duties are more suitable in such cases since they call
systems and higher officials to account, and prevent their shielding from blame.
Maga is not the first case in which there has been a finding of vicarious liability
for abuse committed by a priest3or in which litigation has proceeded on the
basis that vicarious liability is present.4However, it is the first reported English
*Lecturer, University of York. The author would like to thank Professor Jenny Steele and an
anonymous referee for their helpful comments,and Br Pius Collins for his assistance with Canon Law.
All errors, of course, remain my own.
1 [2010] EWCA Civ 256;[2010] 1 WLR 1441.
2 See P. Giliker,‘Lister revisited:vicarious liability,distributive justice and the course of employment’
(2010) 126 LQR 521, 524.
3egCvD, SB A [2006] EWHC 166 (QB) at [111] (Priest Headmaster/Pupil, Board of Governors
‘unquestionably’ vicariously liable).
4egRaggett vSociety of JesusTrust 1929 for Roman Catholic Purposes [2010] EWCA Civ 1002;[2010]
CP Rep 45 (Priest Schoolteacher/Pupil).
© 2011The Author.The Modern Law Review © 2011 The Modern Law ReviewLimited. (2011) 74(6) MLR 932–961
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA

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