Possibility of Vicarious Liability for Clergy Sex Abuse

On November 8, 2011, the High Court of England and Wales ruled that a Catholic priest qualified as an employee of his diocese, thus exposing the diocese to vicarious liability for clergy sex abuse.

The case of JGE v. (1) The English Province of Our Lady of Charity and (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust was filed by a woman who is now 47 years old and claims that between 1970 and 1972, when she was a child, a priest abused and raped her. It is important to note that the priest alleged to have done this, Father Baldwin, is now dead and so could neither be sued nor defend himself.

The question at a preliminary hearing for the High Court was whether the Diocesan Trust could be vicariously liable for the acts of this priest (assuming that the claimant will be able to prove her allegations). This question depended in part on whether the relationship between the priest and the trust was akin to employment. In general, employers can be held vicarious liable for the acts of their employees in the course of employment. If the employer is found to be vicariously liable, monetary redress is awarded to the victim, and employers are encouraged to take care in hiring and appointing staff.

Traditionally, however, British law has not considered Catholic priests as employees of their Dioceses; instead, they have been regarded as “office holders” or, simply put, independent contractors. Why? The Diocesan Trust does not have supervisory control over priests, and a priest cannot sue for unjust dismissal if he is removed from his parish, among other things.

The judge admitted that the relationship between the priest and the defendants was not like a regular employment contract, but in this case, he opted to look at certain special factors, including the nature and closeness of the relationship between the priest and the defendant, and the connection between the tortious act and the purpose of the relationship/employment/appointment, which was based on the factors outlined below.

The main principles of the judgment are stated in paragraphs 35–36:

35 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.

36 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.

This decision allows the case against the diocese to proceed. However, permission has been granted for appeal of this ruling to the Court of Appeal.

In deciding whether vicarious liability exists, the full nature of the relationship between the parties must be considered. This decision confirms that courts are beginning to take a more flexible approach to vicarious liability arguments, at least in the United Kingdom. What will happen if the claimant succeeds? Will the ruling open the door for others to claim vicarious liability against organizations whose independent contractors do wrong? Maybe in specific cases, but probably not for all.

In this case, the relationship between the priest and the diocese, while not enshrined in an employment contract, and lacking certain typical qualities, actually resembles a traditional employment relationship in many more ways than usual employer-contractor relationships. One thing in particular: it’s hard to underplay the importance of the position of a priest dedicated to his church: he is effectively beholden to one employer, despite the availability of numerous individual congregations. He could not simply switch denominations—by his own vows. In other words, despite his official status as an independent contractor, it might be hard to argue his independence.

Another important consideration is the relationship a priest has with his parishioners. He holds a position of the utmost trust and responsibility. He has direct and frequent contact with persons of all ages to whom he represents the highest good. Few other independent contractors have such a position.

So, regardless of the decision, the ruling will likely only apply in certain, very specific cases.

Interestingly, the UK case draws precedent from a Canadian Supreme Court Case, Doe v. Bennett and others (2004), in which a bishop was found vicariously liable for the actions of a priest who had committed acts of abuse against young boys in his parish. The facts of that case were not equivalent to the UK case, mainly in that the employment relationship between the Canadian bishop and the priest was different from that between the British diocese and the priest. So we’ll wait and see what the results of the present case are, and whether they influence Canadian jurisprudence.

Comments

  1. Yosie,

    It’s unlikely, I think, that anything said in JGE is going to influence vicarious liability in comomon law Canada for a number of reasons.

    At most, if the decision is affirmed, it’ll be what amounts to England applying a version of the enterprise liability due to material increase in risk approach declared by the SCC in Bazley and Jacoby as the justification for vicarious liability. That princple is still broader, in theory, than the UK’s close connection test. There’s no reason to believe the SCC will resile from Bazley as the result of anything the Eng CA or UK SC does.

    Also, it seems that some UK legal academics who know what they’re talking about believe the trial judge got the law wrong, even if the result is right. The suggestion is that if the result is right, it should have been on the basis of a breach of the non-delegable duty of care.

    In passing, direct liability was the primary basis of liability in the SCC’s Doe v. Bennett. Vicarious liability was the alternative. If vicarious liability is applied in JGE, it seems to be no different that Bennett. The reason is made clear in this passage from Bennett’s headnote:

    The appellant is also vicariously liable for the wrongs done to the plaintiff-respondents, as the evidence overwhelmingly satisfies the tests affirmed in Bazley, Jacobi and K.L.B. First, the relationship between the diocesan enterprise and B was sufficiently close. Second, it is clear that the necessary connection between the employer-created or enhanced risk and the wrong complained of is established. The bishop provided B with the opportunity to abuse his power, B’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest and the bishop conferred an enormous degree of power on B relative to his victims.

    One English legal academic has described the analysis and result in JGE as “an attempt to create a new overarching category of vicarious liability”. In common law Canada, at least, that attempt has been fait accompli since Bazley.

    Cheers,

  2. As David states the law, In Canada one can have direct liability for the actions of a vicar, while in England liability for a vicar may be only vicarious. The vicar’s personal liability for his misdeeds clearly cannot be described as vicarious.