Bishop Has Vicarious Liability for Actions of Priest

Irish Times
July 30, 2012

http://www.irishtimes.com/newspaper/finance/2012/0730/1224321064352.html

COURT OF APPEAL OF ENGLAND AND WALES JUDGMENT: JGE -v- Trustees of Portsmouth Roman Catholic Diocesan Trust

Neutral Citation Number EWCA Civ 938

Court of Appeal (Civil Division) of England and Wales

Judgment was delivered by Lord Justice Ward on July 12th, 2012; Lord Justice Davis concurring; Lord Justice Tomlinson dissenting.

Judgment

Although a priest is not an "employee" of a bishop, the relationship between a priest and his bishop is sufficiently close to that of an employee to mean the Bishop of Portsmouth was vicariously liable for the actions of a priest of the diocese who abused a child.

Background

The claimant in the case was born in 1963 and when she was six and a half spent two years in a children's home run by nuns. Fr Wilfred Baldwin, the parish priest, regularly visited the children's home where she alleged he abused her. She also claimed he raped her numerous times, including the day of her First Communion. She claimed the trustees of the diocese, who were the legal entity representing the Catholic church and the bishop, were vicariously liable, as the acts committed were connected with his carrying out his duties as a priest.

The trustees, on behalf of the bishop, said they never operated or managed the parish, as all the duties associated with it were carried out by the parish priest. It was also denied he was parish priest at the time; the trustees stated he was instead vocations director in the diocese. These issues were not pursued in this case.

The trustees said neither they nor the bishop had any power to remove Fr Baldwin from the priesthood or from his office against his will, other than in accordance with canon law.

The case therefore concerned the relationship between the priest and the church, and this was tried as a preliminary issue. The claimant won in the High Court and this was appealed to the Court of Appeal.

There was extensive exposition to the court of the relationship between a priest, his bishop and the church under canon law. Canon lawyers for both the plaintiff and the defendants agreed there were no terms or conditions to a priest's appointment other than those set out under canon law; while the bishop appointed the priest, he has no power of dismissal, which has to be effected through the church in Rome; the priest did not receive financial support from the diocese, but from the parish; the bishop must exercise vigilance over the priest and the priest owes the bishop reverence and obedience, but he exercises his ministry as co-operator and collaborator.

Decision

The court agreed that the relationship differed from that of an employee in a number of ways. The question was how significant these differences were. "Can the bishop be vicariously liable if the relationship is akin to employment?" asked Lord Justice Ward.

There was extensive discussion of the treatment of the issue of vicarious liability by the courts both in the UK and other jurisdictions, and Lord Justice Ward examined it at length. He said the courts do not speak with one voice on this, but the search for principle to explain the development of the law must nevertheless go on.

He said he had found this issue difficult to decide. The time has come to emphatically announce the law of vicarious liability has moved beyond the confines of a contract of service, he said. The question was whether the relationship between the bishop and Fr Baldwin was so close to that of employer/employee as to hold the bishop vicariously liable.

Priests are bound by special obligation to show reverence and obedience to their bishop. It had also been stated that if it came to the bishop's attention that a priest was in breach of ecclesiastical law, he would have the right and duty to take action. Abusing a little girl was a most gross breach of ecclesiastical law and if it came to the bishop's knowledge he would be bound to dismiss the priest from his office as parish priest, even if he could not deprive him of the sacrament of holy orders. "Ultimately there is little difference between the bishop's control over the priest and the health trust's control over the surgeon: neither is told how to do the job and both can be told how not to do it," he said.

The question of control should be viewed in a wider sense than enquiring whether the employer had the legal power to control how the employee did his work, and more in terms of whether the employee was accountable for the way he did the work so that the employer could supervise and effect improvements and eliminate risks of harms to others.

The priest was in a relationship with his bishop so akin to employer/employee as to make it just and fair to impose vicarious liability, Lord Justice Ward said. He dismissed the appeal. The full judgment is on judiciary.gov.uk.