In a very interesting case (JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938 (CA (Civ Div)) (England and Wales)) reported in Irish Times today, a judgment of the Court of Appeal (Civil Division) of England and Wales, given on July 12, 2012, held that 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 in this case the Bishop of Portsmouth was vicariously liable for the actions of a priest of the diocese who abused a child.
The case is interesting insofar as it sets out the history of the doctrine of “vicarious liability”, its origins and ordinary application.
In this case the second named defendants denied that they ever managed, operated or were responsible for the church, that although the priest in question was in their service, he was at all times following his vocation and calling as a priest. In essence they argued that a priest is the holder of an office and not their employee.
Lord Justice Ward noted “I can conclude that the time has come emphatically to announce that the law of vicarious liability has moved beyond the confines of a contract of service. The test I set myself is whether the relationship of the bishop and Father Baldwin is so close in character to one of employer/employee that it is just and fair to hold the employer vicariously liable”. In respect of the control test Lord Ward noted” Nevertheless residual control still vests in the bishop. 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 but both can be told how not to do it”. He noted that the priest is accountable to the bishop and the “question of control should be viewed in a wider sense than merely enquiring whether the employer has the legal power to control how the employee carries out his work”.
Justice Ward also noted as an addendum to the judgement that the appellants had sought permission to appeal to the Supreme Court and acknowledged that the “Court’s judgment in this case has widened the scope of vicarious liability extending it from well established situations of employment to relationships that are “akin to employment”. He noted that “we have decided, after some hesitation, to refuse permission to appeal and stated…………the Supreme Court may prefer to wait till
they have a case fought out on all factual issues with a judgment at the
conclusion of a fully contested trial”. He noted finally that the “addendum is written in the hope that it may be of some assistance to the Supreme Court in the event that permission to appeal is sought”.
The judgement is worth reading in full to view the reasoning of the other judges Tomlinson and Davis and we await hearing of the next steps in this ever expansive area of law.