Focus on Vicarious Liability

DWF
September 13, 2012

http://www.dwf.co.uk/insight/legal-updates/focus-on-vicarious-liability-local-authorities-and-foster-carers

Andrea Ward and Denise Brosnan consider the potential implications for local authorities following the recent Court of Appeal decision in JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust (2012) and ask: will there be an extension of the doctrine of vicarious liability to the relationship between local authorities and foster carers?

Background

The doctrine of vicarious liability establishes that an employer is liable for the tortious acts or omissions of its employees. It is a strict liability principle, in other words, the employer automatically becomes responsible for the employee's tort without the need for actual fault on the part of the employer. The courts have been extending the range of relationships giving rise to potential vicarious liability.

In November 2011 Mr Justice MacDuff determined as a preliminary issue in the High Court that a Roman Catholic diocese could be vicariously liable for the wrongful acts of one of its priests given the nature and closeness of the relationship between them. The diocese appealed, denying that the priest was in the service of the diocese and that he was at all times following his vocation and calling as a priest. It was denied that the diocese was vicariously liable for the acts or omissions of priests in the diocese: specifically, a priest is the holder of an office, not an employee of the diocese.

Court of Appeal Findings

On appeal, the first instance decision was upheld. In particular, the Court of Appeal found that the relationship between a bishop and a Roman Catholic parish priest was so close in character to that of employer and employee to make it just and fair to hold a diocese vicariously liable for the wrongful acts of one of his priests. In determining whether vicarious liability can be involved in a case of this type, there is a two-stage test. The first stage involves the relationship between the Diocesan Trust (to be equated with the then diocesan bishop) and the parish priest. The second stage involves the connection between that "employment" relationship and the alleged acts of sexual abuse on the part of the parish priest. In this case, the parish priest did not match every facet of being an employee but the result of each of these tests led to the same conclusion that he was more like an employee than an independent contractor. The Court of Appeal was split and did not find it an easy case to decide so an appeal seems probable.