Roman Catholic church - Liability for tortious acts of priest

GE v English Province of Our Lady of Charity and another: QB (Mr Justice Macduff): 8 November 2011

The claimant alleged that she was sexually abused and raped by a Roman Catholic priest, B, at a time when she was resident at a children’s home between May 1970 and May 1972.

The home was operated and managed by the first defendants, a religious order of nuns. The second defendant stood in the place of the diocesan bishop at the material time. The claimant claimed damages for personal injury. An issue arose as to whether the nature of the relationship was one to which vicarious liability might attach. The second defendant contended that B was not its employee and that vicarious liability could not attach to the relationship which existed between them.

The court ruled: in examining whether party A was vicariously responsible for the acts of party B, there was a two-stage test. The first stage involved an inquiry into the relationship between A and B; whether it was a relationship to which the principles of vicarious liability might attach. The second involved an inquiry into the act or omission of B which was in question; whether the act was within the scope of employment or other relationship. It was the nature and closeness of the relationship which was the test at stage one. That close connection might be easier to recognise than to define.

The court would look carefully at the full nature of the relationship. All the surrounding facts and circumstances were to be considered. Those would include many of the matters which were of relevance also at stage two. Of particular relevance to stage one would be the nature and purpose of the relationship: whether tools, equipment, uniform or premises were provided to assist the performance of the role; the extent to which the tortfeasor might reasonably be perceived as acting on behalf of the authoriser.

That was not an exhaustive list. Every case would be fact-specific and other factors would become apparent as and when they occurred. The extent to which there was control, supervision, advice and support would be of relevance but not determinative. Where the tortfeasors actions were within the control and supervision of the third party, the relationship would be close. Control was just one of the many factors which would assist a judge to the just determination of the question. That question would be whether, on the facts before the court, it was just and fair for the defendant to be responsible for the acts of the tortfeasor, not in some abstract sense, but following a close scrutiny of the connection and relationship between the parties and the connection between the tortious act and the purpose of the relationship/employment/ appointment (see [41]-[43] of the judgment).

The relationship between B and the defendants was significantly different from a contract of employment. There was no real element of control or supervision, no wages and no formal contracts. However, B was appointed by and on behalf of the defendants. He was appointed to do their work, to undertake the ministry on behalf of the defendants for the benefit 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 he so abused.

The nature of the relationship was one to which vicarious liability might attach. The activities of B had been set in motion by the defendants in pursuance of a relationship into which the defendants had entered for their own benefit. It was their empowerment of B which materially increased the risk of sexual assault, the granting of the power to exploit and misuse the trust which the defendants had granted to him. It was the defendants who had introduced the risk of wrongdoing.

By appointing B as a priest, and thus clothing him with all the powers involved, the defendant created a risk of harm to others.

The empowerment and the granting of authority to B to pursue the activity on behalf of the enterprise were major factors. Whether or not the relationship might be regarded as ‘akin to employment’ the principal features of the relationship dictated that the defendants should be held responsible for the actions which they initiated by the appointment and all that went with it (see [35], [37]-[38] of the judgment).

Elizabeth-Anne Gumbel QC and Justin Levinson (instructed by Kathy Perrin) for the claimant; Lord Faulks QC and Nick Fewtrell (instructed by CCIA Ltd) for the defendants.