E v English Province of Our Lady of Charity and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDuff |
| Judgment Date | 08 November 2011 |
| Neutral Citation | [2011] EWHC 2871 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09CX03679 |
[2011] EWHC 2871 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Macduff
Case No: HQ09CX03679
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 & 7 th July 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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...
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