Roman Catholic Church - Liability for tortious acts of priest - Claimant alleging sexual abuse and rape by Roman Catholic priest

JGE v Trustees of the Portsmouth Roman Catholic Diocesan: CA (Civ) (Lord Justices Ward, Tomlinson, Davis): 12 July 2012

From May 1970, for a period of two years, the claimant was placed in a children’s home run and managed by an order of nuns (the first defendant). She alleged that, during that time, the second defendant charitable trust (the trust) operated and/or managed and/or was responsible for a church in the diocese and that, at all material times, B was the parish priest at that church. While resident at the children’s home, the claimant was a parishioner of that church.

The claimant issued proceedings against both defendants, alleging, inter alia, that she had been repeatedly sexually abused and raped by B when he visited the children’s home in the course of his duties as priest for the trust. Further, that the trust had entrusted the safe keeping and care of the claimant to B, delegated those tasks to him and undertook the care and safe keeping of the claimant through the services of B.

Furthermore, it was alleged that the sexual abuse and assaults perpetrated by B had been committed in the course of, or were closely connected with, B’s employment/duties and that, in the premises, the trust was vicariously liable for the sexual abuse by B and for the injury and damage suffered by the claimant as a result. The trust denied, inter alia, that B had been in its service; contending that he had, at all times, been following his vocation and calling as a priest.

The trust further denied that it was vicariously liable for the acts or omissions of priests in the diocese: a priest was the holder of an office and not an employee. The court ordered a trial of a preliminary issue, namely, whether in law the trust might be vicariously liable for the alleged torts of B. Having considered the nature of the appointment of a priest and the relationship between him and his bishop, the judge concluded that the correct test was that of the nature and closeness of the specific relationship.

The judge determined the preliminary issue in favour of the claimant, holding that, whether or not the relationship might be regarded as akin to employment (he had found that the relationship between B and his bishop was not that of employee/employer), the principal features of the relationship dictated that the trust should be held responsible for the actions which it had initiated by the appointment of B and all that went with it. The trust appealed. The first defendant played no part in the appeal. The appeal would be dismissed (Tomlinson LJ dissenting).

(1) Applying established principles, there had been no contract of service or any contract at all. The appointment of B by his bishop had been made without any intention to create any legal relationship between them. Their relationship had been governed by canon law, not civil law. B had not been the servant nor a true employee of the bishop (see [30] of the judgment).

(2) The case of Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd ([2005] 4 All ER 1181) had gone a long way to acknowledge that, for the purposes of establishing vicarious liability, the tortfeasor did not have to be an ‘old-fashioned employee’.

The decision in that case had extended the conventional boundaries and created vicarious liability even where there was strictly no employer/employee relationship. In determining whether the relationship was akin to employment such that the ‘employer’ could be held vicariously liable, academic authority had provided appropriate signposts which could be used to determine vicarious liability: the level of control by the ‘employer’ of the ‘employee’; how far the activity was a central part of the employer’s business from the point of view of the objectives of that business; whether the activity was integrated into the organisational structure of the enterprise; and whether the person was in business on his own account.

The question of control was to be viewed in a wider sense than merely enquiring whether the employer had the legal power to control how the employee carried out his work. It should be viewed more in terms of whether the employee was accountable to his superior for the way he did the work so as to enable the employer to supervise and effect improvements in performance and eliminate risks of harm to others (see [60], [72], [76] of the judgment).

In determining whether the trust would be held vicariously liable for the acts of B, the correct test was whether the relationship of the bishop and B was so close in character to one of employer/employee that it was just and fair to hold the employer vicariously liable. A priest was appointed to his office subject to the oversight of the bishop, and of any diocesan laws and regulations, but in other respects, responsibility for running the parish rested with the parish priest. Although the priest decided for himself how he ran his parish, he operated within a pre-existing framework of rights and obligations set out in the canon law. Nevertheless, he was ultimately subject to the sanctions and control of his bishop.

The bishop did not control each and every facet of how the priest was to carry out his duties day by day, but residual control still vested in the bishop. In that sense a priest was accountable to his bishop. The Roman Catholic Church might not be a legal persona, but it existed and was highly organised. A priest had a central role in meeting the church’s objective of spreading the word of god.

The role of parish priest was wholly integrated into the organisational structure of the church’s enterprise. The circumstances of priesthood did not resonate with them being entrepreneurs; the fact that a priest was required by canon law to reside in the parochial house close to his church was rather like an employee making use of the employer’s tools of trade.

Applying those tests, B had been more like an employee than an independent contractor. He had been in a relationship with his bishop which was close enough and so akin to employer/employee as to have made it just and fair to impose vicarious liability. Justice and fairness were used as a salutary check on the conclusion; it was not a standalone test for a conclusion (see [74]-[81], [122]-[124], [128], [131], [134] of the judgment). Decision of MacDuff J [2011] EWHC 2871 (QB) affirmed.

Elizabeth-Anne Gumbel QC and Justin Levinson (instructed by Emmott Snell & Co) for the claimant; Lord Faulks QC and Nicholas Fewtrell (instructed by CCIA Services Ltd) for the trust.