JGE v The Portsmouth Roman Catholic Diocesan Trust

This appeal gives rise to a troublesome question of vicarious liability. The preliminary issue which falls for decision is “whether in law the second defendant [the Trustees of the Portsmouth Roman Catholic Diocesan Trust] may be vicariously liable for the alleged torts of Father Baldwin”, a parish priest in the diocese. On 8th November 2011 Mr Justice MacDuff determined that issue in favour of the claimant.

The claimant, who should remain anonymous, was born on 20th November 1963 so she is now 48 years of age. In May 1970 when she was 6 ½ years old, she was placed in a children’s home run by the nuns of a convent which was subject to the direction and control of the English Province of Our Lady of Charity, the first named defendant. There she remained for two years before being returned to her mother. The particulars of claim allege that whilst she was there she was beaten by the nun in charge of the home and she claims damages from the Sisters of Charity.

The particulars of claim also allege that the second defendants “operated and/or managed and/or were responsible for” a church in the diocese and that “at all material times Father Wilfred Baldwin was the parish priest at the church” and that “accordingly Father Baldwin was in the service of the second defendants and subject to their direction and control.” It is said that Father Baldwin was regularly invited or permitted by the nuns to visit the children’s home and did so in the course of his duties as a priest for the second defendants. Whilst a resident at the home the claimant was a parishioner of the church. It is then alleged that she was sexually abused and assaulted by Father Baldwin forcing the claimant to perform oral sex on him and masturbate him. Father Baldwin also allegedly performed sexual acts on the claimant and raped her many times, including on the day of her first holy communion when Father Baldwin raped the claimant in the robing room at the church after conducting the service. The particulars of claim allege that the second defendants entrusted the safe keeping and care of the claimant to Father Baldwin, delegated those tasks to him and undertook their care and safekeeping of the claimant through the services of Father Baldwin. But, and this is the important allegation for present purposes, it is also alleged that the sexual abuse and assaults perpetrated by Father Baldwin were committed in the course of or were closely connected with Father Baldwin’s employment/duties and that, in the premises, the second defendants are vicariously liable for the sexual abuse by Father Baldwin and for the injury and damage which the claimant suffered as a result.

In fairness to the second defendants I should set out their defence. Although it is admitted that the parish church was a part of the Roman Catholic Diocese of Portsmouth, the second defendants deny that they ever managed, operated or were responsible for the church, the responsibility resting at all material times with the parish priest. It is denied, moreover, that Father Baldwin was at the material time the parish priest at the church for he did not assume that office until in or around September 1972, some months after the claimant had left the children’s home. The second defendants say that at the material time Father Baldwin was in fact working as the Vocations Director in an altogether different part of the diocese. Their case is that:

The case was virtually ready for trial when a case management conference was fixed before Master Eyre. By then there was another case also managed by Master Eyre where the Roman Catholic Church was alleged to be responsible for the acts of one of its parish priests. Sadly for the Church there have been other occasions when the Church has had to answer for assaults committed by its clergy. Hitherto the Church’s responsibility for the actions of its priests was challenged on the basis only that the acts were outside the scope of the “employment” of the priest. This case, and the other one that was before Master Eyre, are apparently the first in which the first stage of vicarious liability is challenged, namely whether the relationship between the priest and the Church (I use the word “Church” loosely) is such that the principle of vicarious liability may attach if the tortious acts of the priest were within the scope of the relationship. Lord Faulks QC wishes it to be plainly understood that in raising this new defence, the Church does not in any way at all condone any misconduct by their priests: on the contrary any sexual abuse is regarded as an abhorrence. Master Eyre considered this merited the trial of a preliminary issue and so he ordered in the terms set out at [1] above. The first defendant has played no part in the trial of that preliminary issue.

I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort. Since both stage 1 and stage 2 are fact sensitive and since, per Hughes LJ in Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors[2010] EWCA Civ 1106 at [37], “It is a judgment upon a synthesis of the two which is required”, it would have been far better to have dealt with the two stages together. The nature of the relationship between the bishop and the priest must have some effect on the ambit of the acts which are within the scope of that relationship. There is on the pleadings the unresolved dispute as to whether Father Baldwin was the parish priest at the time the assaults were alleged to have been carried out, the defendants alleging he was deployed elsewhere in the parish,and although the parties are keen for this judgment to cover his position both as a priest and as the vocations director, I am reluctant to assume that they are in the same position. The evidence is silent as to the relationship between the bishop and his vocations director; we know little about what exactly the vocations director is appointed to do and for my part I confine myself to the terms of the issue as defined by the Master and by the pleadings. Others will have to decide if and when the question arises whether this judgment is capable of establishing that the bishop is “never, never” free of responsibility as opposed to “well then, hardly ever” (with apologies to the right good Captain of HMS Pinafore).

The Reverend Stephen Morgan gave evidence on the second defendants’ behalf. He was the head of the department for Finance and Property at the Diocese of Portsmouth and the secretary to the Diocesan Trustees and Finance Council. He explained that the Diocese of Portsmouth (which is one of 22 in England and Wales) covers the counties of Berkshire, Hampshire, the Isle of Wight, part of Dorset and the Channel Islands. There are 96 parishes in the diocese, with about 400 souls in each parish. Bishop Derek Worlock, later the Archbishop of Liverpool, was the bishop at the material time. He died in February 1996. Father Baldwin is also deceased. The bishop customarily invited the priests he needed to move to a meeting at which he informed of them of their new appointment. The priest was able to decline to take up that appointment. When the moves were agreed the clergy would be informed but no formal letters of appointment were sent and there were no terms and conditions other than those imposed by the Church’s canon law. An announcement would be made by the bishop to the whole diocese by way of a letter Ad Clerum. Priests did not receive a stipend or indeed any financial support from the diocese. Parishes were responsible for generating their own income to support their parish priest. A parish’s income comprised almost always exclusively the charitable donations collected at Mass. Those monies were paid into a “parish account” which the parish priest was responsible for maintaining. He would withdraw funds from that parish account to pay for his basic living expenses which would be determined by each priest according to his own needs. For tax purposes priests have at all material times been considered to be office holders and have not been subject to the PAYE regime for income tax.

Since the canon law was material, each side took expert advice. Monsignor Gordon Read, Chancellor of the Roman Catholic Diocese of Brentwood and Judicial Vicar there since 1986, gave evidence for the second defendants and Dr Helen Costigane, a lecturer at Heythrop College, University of London, was called for the claimant. There was broad agreement between them. The Code of Canon Law promulgated in 1917 was the Code in force at the material times. As for the structure of the Roman Catholic Church, bishops are appointed by the Pope who, as Bishop of Rome, shares orders as bishop. Bishops are ultimately responsible to the Pope though they have full independent authority over their own dioceses. They are not delegates of the Pope. The diocese comprises the people within a defined territory who have been entrusted to the care of a bishop as pastor. Since the law of England and Wales does not recognise the Catholic Church as a legal entity in its own right, but sees it as an unincorporated association with no legal personality, the diocese usually establishes a charitable trust to enable it to own and manage property and otherwise conduct its financial affairs in accordance with domestic law. The defendant Trust is such a charity. Each parish is in canon law a separate legal entity so that, for example, any property belongs to the parish rather than the diocese. In canon law the position of parish priest is an ecclesiastical office which is of its nature perpetual and to which successive individuals are appointed. The effect is that subject to the oversight of the bishop, and any diocesan laws and regulations, the responsibility for running a parish rests on the parish priest. He is not a delegate of the bishop and does not receive instructions from him on how to run the parish. The bishop exercises oversight through periodic visitation of the parish which should be at least once every five years. It is possible for the bishop to transfer a priest from the parish against his will should the circumstances so require but only by carrying out the process set out in the Code of Canon Law. Thus the bishop may lawfully remove any parish priest from his parish whenever his ministry suffers injury, even without grave fault on his part, or is rendered ineffective by reason of any of the causes recognised in law or for any other similar reason. The procedure for the removal of a parish priest must be followed. That process in effect allows the parish priest to have recourse to the Congregation for the Clergy in Rome if dissatisfied with the decision the bishop. The day to day responsibilities of the parish priest are to reside in the parochial house, celebrate the divine services, minister to the sick and those close to death and “watch with diligence lest anything contrary to faith or morals is passed on in his parish, especially in public and private schools”. As for the relationship between the bishop and the priest, while the priest owes his bishop reverence and obedience, he exercises his ministry as a co-operator and collaborator rather than someone who is subject to the control of his superior as would be the case in the employment field. They agreed that while there are penalties prescribed by canon law and while those are not akin to those seen in situations of managerial supervision in secular employment, they would have to leave it to the court to decide to what extent these may be interpreted in terms of “close supervision” or “control”.

When cross-examined Dr Costigane said:

Monsignor Read told the court that:

Cross-examined by Mr Levinson for the claimant, he agreed that all clerics but especially presbyters (priests) are bound by a special obligation to show reverence and obedience to their own Ordinary (bishop) and that was not a toothless obligation because as set out at Canon 2331:

Accepting that vicarious liability involved the synthesis of two elements, stage 1 being the relationship between the employer and the employee and stage 2 being whether the act was within the scope of the employment, MacDuff J. considered that he had to look at the way the law had developed in both areas and that the reasoning behind decisions at stage 2 were “entirely relevant to stage 1.” That analysis showed that the test which has emerged at stage 2 is whether the employee’s torts were so closely connected with his employment that it would be just and fair to hold the employer vicariously liable.

As for stage 1, he recorded Lord Faulks QC’s concession on the second defendants’ behalf that vicarious liability can be founded on a relationship other than employment. Thus the argument before him centred on whether the relationship here was “akin to employment”.

He found the following matters to be uncontroversial:

As to whether this was an employment relationship, he held:

Then he considered Doe v Bennett & ors [2004] ISCR 436, a decision of the Supreme Court of Canada, and decided:

Thus he concluded that it was “the nature and closeness of the relationship which is the test at stage 1”. He said:

I start with a problem that troubles me. Who is the real defendant? There was some understandable confusion about whom to sue and the claimant’s solicitors sought clarification from the second defendants’ solicitors. It was agreed that the Trustees of the Portsmouth Roman Catholic Diocesan Trust be named as nominal defendants for the Roman Catholic Bishop of Portsmouth who, at the material times between 1970 and 1972 was the late Derek Worlock, and/or the trustees in office at that time whose identity was unknown when the claim was brought. The case has proceeded effectively against the Bishop though it is the trustees who will be covered by the relevant insurance should liability be established. Intuitively one would think that, as a priest is always said to be “a servant of God”, the Roman Catholic Church itself would be the responsible defendant. But the Church has no legal personality and cannot be party. I shall therefore concentrate on the Bishop. The central question for decision is whether the bishop employed Father Baldwin and, if not, was the relationship between them akin to employment.

Although in his interesting article A Theory of Vicarious Liability (2005) Alberta L.R 1, p.2, J.W. Nevers introduces his paper saying, “Vicarious liability occupies a mysterious place in the common law”, it remains firmly entrenched in tort law despite speculation about the need for some rationalisation and reform. It imposes liability on D (the Defendant) to compensate C (the Claimant) for the damage suffered by C caused by the negligent or other tortious act of A (the Actor) even though D is not personally at fault at all. It is thus a form of strict liability. That may seem harsh on D. As O.W. Holmes observed (5 Harv. L. R 1, 14): “I assume that common sense is opposed to making one man pay for another man’s wrong, unless he actually has brought the wrong to pass according to the ordinary canons of legal responsibility.” That view may account for the alternative theory (for which there is some academic support and which may be gaining ground) for fixing D with personal liability by extending the range of non-delegable duties for which he is responsible. So how did this apparently unjust rule develop and, more importantly, what is the ambit of the rule today?

Although Pollock claims to have been the first to coin the phrase (see Pollock-Holmes Letters, vol i, p. 333), its origins are buried deep in the medieval law. It seems to have started in circumstances where the master had expressly commanded his servant to commit a wrong and it developed to encompass acts done by implied command. “Every act which is done by a servant in the course of his duty is regarded as done by his orders and consequently is the same as if it were the master’s own act”, Bartonshill Coal Co v McGuire (1858) 3 Macq 300, 306 per Lord Chelmsford . The traditional, but hard- worked, phrases respondeat superior and qui facit per alium facit per se may have been apposite then, though as Lord Reid acidly observed in Stavely Iron & Chemical Co Ltd v Jones [1956] AC 627, 643, “the former merely states the rule badly in two words, the latter merely gives a fictional explanation of it.” Salmond credits Sir John Holt (1642-1710) with the beginning of the adaptation of those ancient notions to the needs of a modern society. As the Chief Justice said, “Seeing somebody must be a loser by this deceit, it is more reasonable that he, that employs and puts his trust and confidence in the deceiver, should be the loser than the stranger”, Hern v Nichols (1700) 1 Salk 289. By the end of the eighteenth century there was a shift away from the notion of implied command arising from the relationship of master and servant. In its place grew an acceptance by the middle of the next century, aided by the great Victorian judges and the recognition of a changing and developing industrial society, that the existence of the master/servant relationship was itself enough to impose liability on the master if the servant was acting within the scope of his employment. Lord Brougham explained, “The reason I am liable is this, that by employing him I set the whole thing in motion; and what he does, being done for my benefit and under my direction, I am responsible for the consequences of doing it.” So it should be: the master has the “deeper pockets” per Willes J. in Limpus v L.G.O. Co (1862) 1 H. & C. 526, 539.

That was the established law on which we cut our teeth. We learnt that disputes about vicarious liability centred on two questions. First (the stage 1 with which we are concerned in this appeal), the issue was whether this was a true relationship of employer/employee (the notion of master/servant having become “obsolete” per Lord Steyn in Mahmud v B.C.C.I. [1998] A.C. 20, 45/46, though “servant” remains hard to eradicate from the language as in the time-honoured pleading “his servants or agents…”). Secondly, our stage 2, the enquiry was whether A was acting within the scope of his employment or whether he was on a frolic of his own. At the first stage the contrast has traditionally been made between the relationship the employer had with his employee and the one he had with an independent contractor. The analysis examined the difference between a contract of service and a contract for services. Control became the important factor. Was D instructing A how to do the work or contracting with him as to what work was to be done? But control has not survived as the crucial criterion for establishing vicarious liability and other tests for distinguishing the employee from the independent contractor developed as I must explain later in this judgment at [64] to [69] when considering whether vicarious liability can be extended to a quasi employee who is in a relationship with his “employer” which is only akin to employment. Although there is no dispute about it, I must, for the sake of painting the full picture, consider whether there was any contract of service between Father Baldwin and his bishop.

It is common ground that the answer to that question is ‘No’. MacDuff J. concluded that the relationship between Father Baldwin and his bishop differed from employer/employee in significant ways, but how significant the differences are must await further discussion. There are a string of cases involving the employment position of ministers of religion of many denominations and, in order to see the picture in the round, it is worth reviewing them, if only shortly.

Whether or not there is a contract of service between a minister of religion and his church was most recently authoritatively considered in Percy v Church of Scotland Board of National Mission[2005] UKHL 73[2006] AC 28.Mrs Percy was an ordained minister of the Church of Scotland and it was held that since the appointment offered to, and accepted by her entitled her, inter alia, to a salary, to reimbursement of her travelling expenses and to accommodation and other benefits in return for her performing the duties of an associate minister, the agreement between her and the Board displayed an intention to create legal relations between the parties enforceable in the event of breach and constituted a contract personally to execute work within the meaning of section 82(1) of the Sex Discrimination Act 1975. It should be noted, however, that “employment” is there defined to mean either “a contract of services … or a contract to perform any work or labour …”

Lord Nicholls of Birkenhead examined the earlier cases and said:

To that list can be added Santokh Singh v Guru Nanak Gurdwara[1990] ICR 209 where the Court of Appeal upheld an industrial tribunal’s finding that a Granthi (priest) at a Sikh temple was not employed under a contract of service.

Percy was considered by this Court in The New Testament Church of God v Stewart [2007] EWCA Civ 1004. There the pastor was held to be employed by his church under a contract of service. His salary was paid by the national office and he was treated as an employee for income tax and national insurance purposes. Pill LJ considered paragraphs 23 and 24 of Lord Nicholls’ speech in Percy, where Lord Nicholls dealt with the question whether or not there was a presumption against the parties having an intention to create legal relations and he contrasted cases where “without more, the nature of the mutual obligations, their breadth and looseness, and the circumstances in which they were undertaken, point away from a legally-binding relationship” with arrangements “which on their face are to be expected to give rise to legally-binding obligations.” Pill LJ held:

Pill L.J. also went on to say:

Lord Nicholls’ speech in Percy was also illuminating for its discussion on “Office holders and employees”. He said:

Although it is perhaps trite to say it, these cases appear to me to establish that the following approach should be followed:

Applying those principles to the facts in this case, I am completely satisfied that there is no contract of service in this case: indeed there is no contract at all. The appointment of Father Baldwin by Bishop Worlock was made without any intention to create any legal relationship between them. Pursuant to their religious beliefs, their relationship was governed by the canon law, not the civil law. The appointment to the office of parish priest was truly an appointment to an ecclesiastical office and no more. Father Baldwin was not the servant nor a true employee of his bishop.

Because there is no relationship of employer/employee between them, then, if one is judging the question on conventional lines, the bishop is not vicariously liable for the tortious acts of the priest. But now we get to the nub of this appeal. Can the bishop be vicariously liable if the relationship is akin to employment? Can the law be extended that far? To answer those questions, I must deal with the following topics raised in the course of the wide-ranging submissions advanced by counsel: (1) the important case in the Canadian Supreme Court John Doe v Bennett [2004] 1 SCR 436, [2004] SCC 17; (2) the only reasoned English case relevant at stage 1, Viasystems (Tyneside) v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510; (3) the recent developments of the law at stage 2; (4) the policy considerations which inform the doctrine of vicarious liability; and, finally, drawing the threads together, (5) the search for principle.

The Canadian Supreme Court had considered the application of the doctrine of vicarious liability to the tort of sexually assaulting children in Bazley v Curry (1999) 174 (4^th) 45 and in Jacobi v Griffiths 174 DLR (4^th) 71, important cases on the developing law at our stage 2, the scope of employment. I shall deal with them later at [47]. In Doe McLachlin C.J. delivering the judgment of the court said at paragraph 20, the passage on which MacDuff J relied:

At paragraph 27 she said:

Over a period of almost two decades a Roman Catholic priest in Newfoundland sexually assaulted boys in his parishes. Two successive bishops and the archbishop failed to stop the abuse. The claimants, by then adults, sued the priest, the episcopal corporation of the diocese, the bishops and archbishop and even the Roman Catholic Church. The court treated the episcopal corporations as the secular arm of the bishop or archbishop for all purposes. The appeal centred on whether or not the corporation was vicariously liable for the priest’s assaults.

Lord Faulks points out that the facts of that case are very different from the facts before us. Indeed they are. This was a very isolated rural community where the priest:

This is the only recent English case to which our attention was drawn which has seen some development of the law of vicarious liability. The claimants engaged the first defendants to install air conditioning in their factory. The first defendants sub-contracted ducting work to the second defendants. The ducting work was being carried out by a fitter and his mate, supplied to the second defendants by the third defendants on a labour-only basis under the supervision of a fitter working for the second defendants, when the fitter’s mate negligently caused the fracture of the fire protection sprinkler system, resulting in severe flood damage to the factory. In the court below it was assumed that only one of the second or third defendants could in law be vicariously liable for the negligence of the fitter’s mate, not both. In the Court of Appeal counsel drew attention to the discussion in Atiyah Vicarious Liability in the Law of Torts (1967) in a chapter entitled “The Borrowed Servant” where it was suggested that both the general and the temporary employer could be vicariously liable for an employee’s negligence. That was the issue which engaged the Court of Appeal.

Dealing with the question of dual vicarious liability, May LJ said this:

As for the test to apply, he held:

Rix LJ agreed but added his own gloss on the subject. He said:

As I read those judgments, two justifications for the extension of the employer/employee relationship are given: the first, per May L.J., who was entitled, and in theory, if they had the opportunity, obliged to control the workmen, and the second, per Rix L.J., was the employee in question so much part of the work, business or organisation of both employers that it was fair, just and convenient for both to bear the risk of the employee’s negligence.

Viasystems has, I have discovered, been considered by this court in Hawley v Luminar Leisure Ltd and ASE Security Services Ltd[2006] EWCA Civ 18. Luminar operated a nightclub in Southend. They contracted with ASE for the provision of security services and under that contract provided the supply of “door supervisors”, one of the doormen being Jeffrey Warren. He unlawfully assaulted the claimant, punching him so hard that he fell to the ground, fractured his skull and suffered permanent and serious brain damage. He alleged both Luminar and ASE were each responsible for Warren’s tortious and deliberate act. The trial judge, Wilkie J, who tried the claim before Viasystems had been decided in this Court, held that “the control that Luminar had over ASE’s employees was such as to make them temporary deemed employees of Luminar for the purposes of vicarious liability.” Giving the judgment of the Court, Hallett LJ, with contributions from Latham and Neuberger LJJ, held that was a decision he was fully entitled to reach and one with which the Court of Appeal should not interfere. The Court did however discuss Viasystems. They noted the different approaches taken by May and Rix LJJ but did not choose between them. Every case was fact specific and many factors might be relevant. The question of control may not be wholly determinative but remained at the heart of the test to be applied. “Whatever approach one adopts we are not persuaded that on the facts of this case it makes any difference.” There was no discussion about the correctness of accepting the possibility of dual responsibility: all the Court seems to have said is:

There have been a spate of recent cases where the courts have had to decide an employer’s liability for sexual abuse committed by school masters and priests. In all these cases an employment relationship, our stage 1, was conceded and the question was whether the innocent employer should be responsible for the criminal acts of his employee. The law is established by Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215. There the claimants were resident in a boarding house attached to a school owned and managed by the defendants. Without their knowledge, the warden of the boarding school employed by them systematically sexually abused the claimants. The Court of Appeal held that the warden’s acts could not be regarded as an unauthorised mode of carrying out his authorised duties. But that decision was reversed on appeal to the House of Lords. The ratio of the case is clear. Lord Steyn was of the opinion that the correct test was this:

Lord Hutton agreed with Lord Steyn (see [52]). So did Lord Hobhouse of Woodborough (see [63]). Lord Clyde applied the same sort of test saying that:

Lord Hobhouse, and even to some extent Lord Millett, added opinions which have given rise to some academic criticism. Lord Hobhouse said:

The criticism is that the court did not take the opportunity to settle the guidelines between vicarious liability and personal liability, whether in negligence or for breach of non-delegable duties. For example in Tony Weir’s 2002 edition of Tort Law, at p. 103 he writes: “The distinct analyses [vicarious liability and non-delegable duty] were not kept properly apart.” McBride and Bagshaw, Tort Law 2nd edition, 2003 argue at p. 652:

Be that as it may Lister is binding as to the test for stage 2 and has been applied in a number of cases: see for example Maga v Archbishop of Birmingham [2010] EWCA Civ 256, [2010] 1 WLR 1441 (sexual abuse by a priest) and Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors (sexual abuse by the brothers of the De La Salle Institute). There Hughes LJ, with a hint of the views of Rix LJ in Viasystems and Lord Hobhouse in Lister, said:

For completeness I must refer to the Canadian authorities Bazley and Jacobi which on the same day established the close connection test though the court reached different conclusions when applied to the facts of the two cases. In Bazley the Children’s Foundation, a non-profit organisation, operated residential care facilities for the treatment of emotionally troubled children. The Foundation authorised its employees to act as parent figures for the children. Unfortunately the Foundation hired a paedophile who sexually abused one of the children in the home. The court saw its task as endeavouring to articulate a rule consistent with both the existing authority and the policy reasons for vicarious liability. The common theme in the existing authorities resided in the idea that where the employee’s conduct was closely tied to a risk that the employer’s enterprise had placed in the community, the employer would be justly held vicariously liable for the employee’s wrong. But the court devoted itself extensively to the policy considerations, holding that vicarious liability has always been concerned with policy. As Fleming The Law of Torts 9th edition, 1998 puts it at p. 410, “[V]icarious liability cannot parade as a deduction from legalistic premises, but should be frankly recognised as having its place in a combination of policy considerations.” Giving the judgment of the court McLachlin J found that the concern of the law was first and foremost to provide a just and practical remedy to people who suffer as a consequence of wrongs perpetrated by an employee. That, coupled with deterrence of future harm, usefully embraced the main policy considerations that had been advanced. “The idea that the person who introduces a risk incurs a duty to those who may be injured lies at the heart of tort law”: [30]. Fairness demanded that the employment enterprise employing others to advance its own economic interest should bear the burden of providing a just and practical remedy for wrongs perpetrated by their employees. That is fair to the injured person. It is also fair to the employer because it is right and just that the person who creates the risk should bear the loss when the risk ripens into harm. So the court concluded:

Although this case has received high praise (see Lord Steyn at [27] of Lister cited at [43] above), it has not escaped its share of understandable criticism. Fridman, “The Course of Employment: Policy or Principle?” (2002) 6 Newcastle Rev. 61 at 66 suggests that the approach of the Supreme Court represented “the triumph of policy over principle”. In Lister Lord Steyn himself guardedly thought it “unnecessary to express views on the full range of the policy considerations” that dominated the Canadian cases. Lord Hobhouse was more forthright:

So much for the recent developments at stage 2, the scope of the employment. Whatever its flaws, the rule remains that there must be a close connection between the employment and the tortious act. Whether this stage 2 test is of any relevance or help in ascertaining whether the case comes within stage 1 is a matter to which I must return.

The doctrine of vicarious liability does give rise to a clash of two broad policies upon which the law of torts is founded, one that there ought to be an effective remedy for the victim of another’s wrongful act, and the other that the defendant should not generally be held liable unless he was at fault. Only policy considerations can explain the triumph of the former over the latter. Identifying the relevant strands of policy and evaluating their importance is not straightforward.

Longmore LJ observed in Maga at [81]:

There is of course much instructive academic debate about the subject but it is, unfortunately, not possible fully to deal with it in this judgement. In A Theory of Vicarious Liability 2005 Alberta L.R. 1 referred to above J.W. Neyers conducts a perceptive analysis of the main rationales and examines the failures of the leading theories of control, compensation, deterrence, loss spreading and enterprise liability adequately to explain the doctrine of vicarious liability and its limits. It may be useful to summarise some of the main themes.

It seems, therefore, that no single rationale provides a complete answer for the imposition of vicarious liability. I have to agree with the view expressed by, among others, Fleming in Law of Torts, 10th edition (2011) p. 438 that: “… the modern doctrine of vicarious liability should be frankly recognised as having its basis in a combination of policy considerations.” If, as I accept, the court cannot ignore the role played by policy in shaping the decision at hand, the question still remains: what should the role of policy be?

The courts do not speak with one voice. At one extreme McLachlin J in Bazley believes:

Many seem to doubt that one can find a rule which covers every situation. In Kilboy v South Eastern Fire Area Joint Committee 1952 SC 280, 285, the Lord President (Cooper) said of the rule respondeat superior “What was once presented as a legal principle has degenerated into a rule of expediency, imperfectly defined, and changing its shape before our eyes under the impact of changing social and political conditions.” For Lord Pearce, “The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice”: Imperial Chemical Industries v Shatwell[1965] AC 656, 685. Professor Glanville Williams’ rather scathing view in Vicarious Liability and the Master’s Indemnity, 1957 MLR 220, 231 was:

The search for principle to explain the development of the law must nevertheless go on. The answer should not be a mere expedient reaction to the particular problem confronting the court at the time; the outcome must serve as the desired solution for the matter in dispute but it must not also generate inappropriate outcomes in other situations. As Phillip Morgan points out in the article he sent us, Revising Vicarious Liability – a Commercial Perspective 2011 Lloyds Maritime and Commercial Law Quarterly 175, “In the field of vicarious liability, where cases concerning abuse litigation have led, cases involving commercial concerns have followed”, citing Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] AC 366 where Lister was applied in a case of commercial fraud.

The academic writers have accordingly set us a daunting task. I would have wished to have had more time for research and reflection but these are luxuries we do not enjoy. Let me start with MacDuff J’s judgment and his adoption of the approach of the Canadian Supreme Court in Doe. Is the principled approach of universal application to ask whether the connection between the tortfeasor and the defendant is sufficiently close in its nature and purpose to amount to a relationship akin to employment and thus render it just and fair to make the defendant vicariously liable for the actions which he initiated by appointing the priest to his parish? That approach requires one to look for (1) a relationship akin to employment; (2) which is established by a connection between D (defendant) and A (actor) which is sufficiently close so that (3) it is fair and just to impose liability on D. That gives rise to these questions: (1) given the unchallenged finding that there is no relationship of employer/employee in this case, can the law be extended to relationships “akin to employment”? (2) Is the close connection test appropriate and (3) is it enough that the result is just and fair?

This question is closely linked to a matter which has excited and divided academic opinion: can one be an employee for one purpose (e.g. in employment law for unfair dismissal or for PAYE income tax) but not for another, namely vicarious liability and the law of tort? The traditional view that the question “who is a servant?” should receive the same answer regardless of the context in which the question is asked is exemplified by Atiyah, Vicarious Liability and the Law of Tort p. 32/33. The more modern view to the contrary, held, for example, by Ewan McKendrick, Tort Textbook 5th ed., 18, derives from the increase in atypical forms of employment. McKendrick poses the problem in his article Vicarious Liability and Independent Contractors – A Re-examination (1990) 53 MLR 777:

In my judgment the time has come to recognise that the context in which the question arises cannot be ignored. If the case is one where an employee seeks a remedy against his employer, for example for unfair dismissal, then the case does require that the true relationship of employer/employee be established in order to found the claim. It is after all a claim based on that relationship. Likewise liability for income tax ultimately depends upon the proper construction of the specific provisions in the relevant tax legislation. The statutory definition will demand a true relationship of employer/employee. If the case is brought under the sex discrimination legislation, then a different test applies: see Percy. On the other hand the remedy of an innocent victim against the employer of the wrongdoer has a different justification rooted, as we have seen, in public policy. The fluid concept of vicarious liability should not, therefore, be confined by the concrete demands of statutory construction arising in a wholly different context.

I have not overlooked Lord Steyn’s observation in the Privy Council in Bernard v The Attorney General of Jamaica [2004] UKPC 47 at [23]:

With all due respect to the Canadian Supreme Court I simply do not understand how their review of precedent and/or broader policy rationales led to the conclusion that “the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close.” If anything precedent is against that conclusion. Parent and child could not be closer yet the parent has never been vicariously liable for the tort of the child simply by reason of being a parent. Husband and wife may be thought to be closely connected but the ancient rule that the husband was always vicariously liable for his wife’s tort was abolished long ago. A wife is not vicariously liable for her husband’s (or his agent’s) use of the family car owned by the wife where the use was entirely for his purposes and not for hers: Launchbury v Morgans [1973] AC 127. The close connection test (the sufficient connection between the work that the employee had been employed to do and the acts of abuse that he committed) is established for stage 2 purposes (Lister et al) but even if liability depends on a synthesis of stage 1 and stage 2 (Various Claimants per Hughes LJ) I do not see why the close connection test for stage 2 purposes has to be transposed to stage 1 which is analysing the nature of the relationship. The employer may have as close a connection with his regularly used independent contractor as he has with an employee who is but an anonymous member of his workforce. I do not find closeness of that connection to be of any great assistance.

If there is a close connection test, it is that the relationship between the defendant and the tortfeasor should be so close to a relationship of employer/employee that, for vicarious liability purposes, it can fairly be said to be akin to employment. One may at least ask the very broad question whether the tortfeasor bears a sufficiently close resemblance and affinity in character to a true employee that justice and fairness to both victim and defendant drive the court to extend vicarious liability to cover his wrongdoing. For this purpose one is looking to identify the broad characteristics of the employer/employee relationship.

If it is necessary to see how close in character the tortfeasor is to being an employee of the defendant, it is necessary at least to bear in mind the characteristics and hallmarks of a true employee.

I indicated early on at [21] that vicarious liability tended to depend on the difference between employee and independent contractor. If, as I believe, it is necessary to attempt to capture the essence of what it is that makes a man an employee, I must examine those differences in more detail. Generally speaking, an employee works under the supervision and direction of his employer: an independent contractor is his own master bound by his contract but not by his employer’s orders. An employee works for his employer: an independent contractor is in business on his own account. In Ready Mix Concrete (South East) Ltd v Minister ofPensions and National Insurance [1968] 2 QB 497 (a case which I observe with envy occupied the court for six days whilst we were allowed one only), McKenna J said at p. 515 that a contract of service exists if these three conditions are fulfilled:

That leaves control as an important distinguishing factor. The example is often given of the difference between the chauffeur and the taxi driver but it is not always as easy as that. As times have changed so control has become an unrealistic guide. It may have been more meaningful when work was done by labourers under the direction of employers who had the same or greater technical skills than their workmen. Now that one is frequently dealing with a professional person or a person of some particular skill and experience, for example a brain surgeon, there can be no question of the employer telling him how to do his work for in truth the skilled person is engaged for the very reason that he possesses skills which the employer lacks. The emphasis placed on control has thus been reduced. As Roskill J said in Argent v Minister of Social Security [1968] 1 WLR 1749, 1758-9:

Roskill J also referred to Denning LJ’s views expressed in Stevenson Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101, 111 and Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248, 295. In the former Denning LJ said:

The Privy Council in Lee Tin Sang did, however, give this help at p. 382:

To much the same effect is an earlier Privy Council case, Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 where Lord Wright said:

There being no single test, what one has to do is marshal various tests which should cumulatively point either towards an employer/employee relationship or away from one. Adopting that approach confirms that which is accepted as the common ground, namely, that Father Baldwin is not a true employee. The test may yet be useful to see whether he can be said to be an independent contractor, for if he is, the law is clear: the employer is not vicariously liable for the torts of his independent contractor. I am satisfied that Father Baldwin is no more a true independent contractor than he is an employee. For a start, he has no contractual relationship with his bishop. He is hardly a person in business on his own account with a free hand to carry out the job, if it is a job, as and when he wishes.

Whilst it may be useful to carry out some sort of comparative exercise for the purpose of ascertaining how close the relationship of Father Baldwin and the bishop is to a relationship of employer/employee as opposed to that of employer/ independent contractor, my judgment is that one should concentrate on the extent to which, if at all, he is in a position akin to employment. The cases analysed in the immediately preceding paragraphs should be noted with a view to abstracting from them, if it is possible, the essence of being an employee. To distil it to a single sentence I would say that an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss.

Whilst it is useful as part of an overall exercise to use the traditional distinctions between employer and employee to see whether vicarious liability may fairly and properly be extended to this particular relationship, it is also necessary to include a consideration of the policy factors which enable a judgment to be made as to the justice - or injustice - of extending liability.

I have found Professor Richard Kidner’s article Vicarious Liability: for whom should the ‘employer’ be liable? (1995) 15 LS 47 to be most illuminating and helpful. He suggests that the following in some mix or other are appropriate signposts which may point to vicarious liability:

I confess I have found this difficult to decide. I see the force of the arguments both ways. 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.

Looking first at the control test, the priest is 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 rests with the parish priest. The priest exercises his ministry in co-operation and collaboration with his bishop rather than as one who is subject to the bishop’s control as would be the case in an ordinary employment relationship. Nevertheless, as Dr Costigane said (see [9] above):

Although the priest decides for himself how he runs his parish he operates within a pre-existing framework of rights and obligations set out in the Code of Canon Law as all such matters as duties, financial support and time away from the parish are left to the general provisions of Canon Law. Nevertheless he is ultimately subject to the sanctions and control of his bishop. The bishop does not control each and every facet of how the priest is to carry out his duties day by day for, as Monsignor Read explained in his written report,

In my judgment 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. It should be viewed more in terms of whether the employee is accountable to his superior for the way he does the work so as to enable the employer to supervise and effect improvements in performance and eliminate risks of harm to others (the notions relied upon by McLachlin CJ in Bazley (see [47] above). In this sense the priest is accountable to his bishop.

As for the organisation test, the problem here is to identify the employer’s – the bishop’s – business. Or is it really the bishop’s business? In reality it is not. The Roman Catholic Church may not be a legal persona but it does exist. It is highly organised. As Canon 369 of the current 1983 Code of Canon Law describes it, “

Next the integration test: the role of the parish priest is wholly integrated into the organisational structure of the Church’s enterprise. He is, in Denning LJ’s terms (see [66] above), part and parcel of the organisation, not only accessory to it. This picks up on the test applied by Rix LJ at [79] of Viasystems (see [39] above):

Finally the entrepreneur test: is the priest more like an independent contractor than an employee? Is he actually behaving as an entrepreneur, running his own little business, taking the appropriate risks and enjoying the resulting profits? True it is that the priest is not directly paid a salary but is dependent on what he can take from the collections given at Mass. As I understand it, any surplus forms part of the parish funds and is hardly his to put in his pocket. More recently a Decree on the Ministry and Life of Priests n.20 (December 1965), implemented in part through the Apostolic Letter Ecclesiae Sanctae of 6th August 1966 provided that:

At [70] above I distilled the essence of being an employee to be that he is paid a wage or salary to work under some, even if only slight, control of his employer in his employer’s business for that business. Father Baldwin may not quite match every facet of being an employee but in my judgment he is very close to it indeed.

The result of each of the tests leads me to the conclusion that Father Baldwin is more like an employee than an independent contractor. He is in a relationship with his bishop which is close enough and so akin to employer/employee as to make it just and fair to impose vicarious liability. Justice and fairness is used here as a salutary check on the conclusion. It is not a stand alone test for a conclusion. It is just because it strikes a proper balance between the unfairness to the employer of imposing strict liability and the unfairness to the victim of leaving her without a full remedy for the harm caused by the employer’s managing his business in a way which gave rise to that harm even when the risk of harm is not reasonably foreseeable.

Can I test the conclusion in two ways? The first is admittedly loose: applying, or rather adapting, some of Somerville LJ’s test in Cassidy v Ministry of Health cited at [65] above, I ask was the relationship akin to employment within the meaning which an ordinary person would give the words? I believe that the passenger on the fictional Clapham omnibus would say of a parish priest that he is a servant of the parish and that the parish should be ultimately responsible for his actions. But that is, of course, an emotive, and therefore a not very reliable test.

Let me then remove the emotion, which certainly pervades this case where one is outraged by the thought, if it be true, that a parish priest would defile a young girl on the day of her first communion. Change the facts completely. Let us assume the priest receives an urgent call to minister the last rites to a faithful member of his parish close to death. Canon 468 requires this of him:

Consequently, whilst acknowledging the strength of the arguments to the contrary, I would dismiss this appeal.

In The Institute of the Brothers of the Christian Schools case, 2010 EWCA Civ 1106, Hughes LJ with whose judgment I agreed laid emphasis upon the fact sensitive nature of the two stage enquiry which it is necessary to undertake when examining whether A is vicariously responsible for the acts of B and concluded, at paragraph 37 that “It is a judgment upon the synthesis of the two [stages] which is required”. In the light thereof and having regard to the notorious difficulty of this area of the law I do not view with equanimity the invitation to the court to resolve the preliminary issue which was here directed to be tried. It is not a field which lends itself to preliminary issues, still less to a preliminary issue which represents only one half of two interdependent enquiries.

Accordingly I make no apology for declining to answer the broad question which Miss Gumbel QC submitted arises for decision and which, she says, was intended to be raised. That issue is, she suggested, “Can a Roman Catholic Bishop ever be held liable for the actions of a priest in his diocese,” because, if not, that is a complete answer to the claim. Miss Gumbel asked the court not to answer this question in the negative because so to do would, she suggested, put the Roman Catholic Church in a position of immunity. If that were the question, I would certainly not answer it in the negative, since the answer would depend upon what precisely the priest had done and what he had been authorised to do. If the preliminary issue indeed raises this question, then in my view it admits of only one answer.

The question posed by the preliminary issue is in fact much more tightly drawn. It refers to the Second Defendant, which for present purposes we are invited to regard as a reference to Bishop Derek Worlock, who was Bishop of the Roman Catholic Diocese of Portsmouth during the period May 1970 – May 1972 when the alleged acts of abuse took place. Furthermore the preliminary issue refers to the alleged torts of Father Baldwin, which means the matters set out in the Particulars of Claim. Those Particulars assert that Father Baldwin was at the relevant time “the Parish Priest” at the Sacred Heart Church Waterlooville. There is an issue about this. The Defendants assert that Father Baldwin was at the relevant time working in the diocese as Vocations Director and was moreover based and working at the other end of what is a large diocese. For the purposes of this appeal and of resolving the preliminary issue, I will assume that the pleaded allegation is correct. I will also assume, because I think it is an assumption which enables the case for the Claimant to be put at its highest, that Bishop Worlock appointed Father Baldwin to the office of Parish Priest at the Sacred Heart Church. That said, (a) it is not alleged that Bishop Worlock, or indeed any other bishop, was in any way at fault in selecting Father Baldwin for this office and (b) in such circumstances I am unsure that the vicarious responsibility of a Diocesan Bishop for the acts of a priest operating in the diocese should be dependent upon the accident of whether he had in fact appointed him.

It is not alleged that the Bishop entrusted to Father Baldwin any specific duty in relation to the conduct of The Firs Children’s Home at which the Claimant was resident whilst a young girl of seven and eight years old. The home was operated and/or managed by an order of nuns. There is no presently pleaded allegation as to any duty of responsibility, of whatever nature, resting upon the Bishop for the activities of the nuns of the order.

The allegation is that Father Baldwin was regularly invited or permitted, sc. by the nuns, to visit the home and that he did so “in the course of his duties as a priest for [the Bishop]”. I do not read this as involving an allegation that Father Baldwin was given any specific responsibility in relation to the home, rather as an allegation that visiting the home fell within the scope of what ordinarily a parish priest could be expected to do should there be a residential home of this sort run by nuns within his parish. In my view it would be far easier for the Claimant to establish the vicarious liability of the Bishop if it were the case that the Bishop had entrusted Father Baldwin with a responsibility for overseeing the conduct of the home or overseeing the nuns in their conduct of the home.

It is also alleged that whilst a resident at the home the Claimant was a parishioner of the Sacred Heart Church. I assume that this means that the Claimant was (and is) a member of the Roman Catholic Church. This is potentially a point of some significance – cf the observations of Lord Neuberger MR and of Longmore LJ in Maga v Archbishop of Birmingham2010 1 WLR 1441 at paragraphs 44 and 79 respectively.

Finally, it is said that by reason of Father Baldwin visiting the home in the course of his duties as a priest for the Bishop, combined with the circumstance that the Claimant was at the relevant time a parishioner of the Sacred Heart Church, the Bishop owed to the claimant a duty of care.

If the principled approach to the establishment of vicarious liability adopted by Lord Hobhouse in Lister’s case, 2002 1 AC 215, is the touchstone, the Claimant cannot I think succeed without establishing that the Bishop indeed owed a duty of care such as that alleged, albeit that there would need to be some particularity as to the precise ambit of that duty. I am very reluctant to hold on the basis of the material before us that the Bishop did owe such a duty, by which I mean of course a duty recognised and enforceable by the common law, not what Longmore LJ at paragraph 91 of his judgment in Maga described as “a duty of imperfect obligation”. If the Bishop had or had assumed some responsibility for the conduct of the home the position might well of course be very different. But I regard as extravagant the notion that a Roman Catholic Bishop owes without more to every member of the Roman Catholic Church resident within his diocese an enforceable duty of care and what is more a duty of undefined ambit. On the basis of the pleaded allegations, I am not sure that the Claimant can for these purposes claim to be in any different position from that of every other member of the Roman Catholic Church within the diocese, whether resident at the home or not.

The question which we are asked to resolve focuses upon what Hughes LJ at paragraph 37 of his judgment in The Institute of Christian Brothers case described as the relationship between D1 and D2, i.e. that between the tortfeasor and the person, whom I will for convenience call the principal, sought to be made vicariously liable for the tort. In Maga the relationship between the Roman Catholic Diocesan Bishop and a priest working within the diocese, albeit not the “Parish Priest”, was accepted for the purposes of the argument in that case to be one of employment.

In circumstances where the relationship between D1 and D2 is not one of employment, or perhaps akin to it, the only common thread which I can discern running through the authorities is that in order to be capable of giving rise to vicarious liability the relationship must at the very least be something which can loosely be described as agency. Thus in John Doe v Bennett 2004 ISCR 436, a decision of the Supreme Court of Canada upon which the judge placed heavy reliance, McLachlin CJ at paragraph 27 of her judgment described the relationship between bishop and priest there established upon the evidence both as “akin to an employment relationship” and, because of the extensive control which the bishop was there found to exercise over the priest, as giving rise to a reasonable perception that the priest was “an agent of the diocesan enterprise”.

I am not sure that McLachlin CJ defined what she meant by the “diocesan enterprise”, but I think that she was referring to the whole gamut of the activities of the church within the relevant community. At paragraph 11 of her judgment and in a different context she described the position thus:-

The remote Canadian parishes in which the abusive priest in question worked were most unusual in nature. McLachlin CJ described them in this way at paragraph 30 of her judgment:-

Nonetheless, I do not think that the court in Doe v Bennett observed a consistent distinction between the power conferred upon the priest by virtue of his appointment as the employee or quasi-employee or agent of the Bishop and the power which was conferred upon him solely by virtue of his status or standing as an ordained priest. Thus at paragraph 29 the court said that “Bennett’s wrongful acts were strongly related to the psychological intimacy inherent in his role as priest”. McLachlin CJ went on to point out that “the church encourages psychological intimacy between the priest and the members of the parish”. That may be so, but I consider that it is open to question whether the psychological intimacy should be attributed to status as ordained priest rather than to appointment as parish priest. Perhaps in the case under consideration the distinction was of no importance having regard to the special features of the remote parishes. Thus at paragraphs 31 and 32 McLachlin CJ concluded as follows:-

In an earlier passage of her judgment, paragraph 20, McLachlin CJ had observed that “vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public”. The Roman Catholic Church has in our case been at pains to disavow the notion that the very appointment of a priest materially increases the risk of sexual assault, a notion which no doubt owes its currency to the adverse publicity which has surrounded the Catholic Church in relation to sexual abuse in recent times. Lord Faulks QC submitted and I agree that it is a substantial and unjustified leap in reasoning “to associate the priesthood ipso facto with sexual abuse”. There are however echoes of this approach in the judge’s judgment. At paragraph 35 he referred to the “immense power” handed to the priest by the Second Defendants, by which is to be understood the Bishop, and went on to conclude at paragraph 38 that “It was their [his] empowerment of the priest which materially increased the risk of sexual assault.” He concluded at paragraph 39 that by appointing Father Baldwin as a priest, and thus clothing him with all the powers involved, the Defendants [the Bishop] created a risk of harm to others, viz the risk that he could abuse or misuse those powers for his own purposes or otherwise.

In the Lister case Lord Millett said at paragraph 83:-

It is considerations such as these which inform my view, expressed above, that the Claimant’s task in attaching liability to the Bishop would be much easier had the Bishop entrusted to Father Baldwin some responsibility in respect of the residential home. It may be that evidence will establish either that he did or that he should be regarded as having done so, but I do not understand that to be something which the Claimant is currently offering to prove at trial. We can determine this preliminary issue only on the basis of the pleaded allegation. I consider that Lord Faulks is correct when he submits that the judge has not attempted to explain why the very appointment of a priest to the office of parish priest materially increases the risk of sexual assault.

In Viasystems Ltd v Thermal Transfer2006 QB 510 Rix LJ at paragraph 55 offered the following analysis:-

These passages contain what I respectfully regard as a useful synthesis of the learning on the topic. It resonates with the speech of Lord Millett in the Lister case where at paragraph 65 he collected together some of the academic commentary:-

Central to the resolution of the issue in this case is, I think, the question whether the concept described by Lord Millett and by Rix LJ can be transposed into the context of the priest doing the work of the church, and whether the Bishop is for this purpose simply to be identified with the church.

The judge regarded Father Baldwin as having been appointed to do the work of the church “for the benefit of the church” – paragraph 35. He regarded Father Baldwin as “appointed and authorised by them (i.e. the church) to act on their behalf” – paragraph 36. Adapting the principles distilled from Viasystems and Bazley v Curry[1999] 174 DLR (4) 45, another decision of the Supreme Court of Canada, he regarded the activities of Father Baldwin as “set in motion by [the church] in pursuance of a relationship into which [the church] had entered for [its] own benefit”.

I find this reasoning contrived and unconvincing. I do not consider that the concepts of enterprise and benefit can easily be transposed into this context. If Father Baldwin can properly be regarded as undertaking his ministry for the benefit of anyone I should have thought that it was for the benefit of the souls in his parish. I do not think that it is sensible to describe either the church or the Bishop as having derived a benefit from the activities of its or his priests within the diocese. Miss Gumbel submitted that in this context benefit need not mean financial benefit. That may be so, although as Lord Faulks pointed out (as did Hughes LJ in paragraph 57 of his judgment in The Institute of Christian Brothers case) a commonality of interest does not necessarily reflect a benefit any more than it gives rise to an “enterprise” which the priest can properly be regarded as carrying out for and on behalf of the Bishop.

The judge’s findings at paragraph 29 of his judgment as to the lack of control exercised by a diocesan bishop over the priests in his diocese set this case apart from any other hitherto decided, in particular John Doe v Bennett where the bishop was found to exercise extensive control over the priest. I do not think that the judge’s error as to the power of removal affects this conclusion. Furthermore the present case is distinguishable from Maga, where it was accepted for the purposes of that case that Father Clonan was an employee of the Archdiocese. I have nonetheless pondered long and hard whether the decision and reasoning of this court in Maga does not in any event compel us to decide that the Bishop may here be vicariously liable for the alleged torts of Father Baldwin. In my view it does not. The reasoning relates to a relationship equivalent to employment with all the assumptions that that brings as to the nature and extent of the control exercised or capable of being exercised. The present case calls those assumptions into question.

In Maga at paragraphs 82 and 83 of his judgment Longmore LJ said this:-

All of this was of course said in the context of an examination whether there existed a sufficiently close connection between the abuse and what Father Clonan was authorised to do, i.e. the second stage of the two-stage enquiry. However I do not think that Longmore LJ would have been able to express himself in this way had he not been considering, as he emphasised at the outset of this part of his judgment, the responsibility of an employer for his employee. Shorn of that starting point, the question whether the Bishop had a legal obligation to care or assumed a legal responsibility to care would have been thrown into stark relief. The absence of any formal legal responsibility would not have been “almost beside the point” but would rather be the point. I infer from the way in which he expresses himself that Longmore LJ may share the doubt on this aspect which I have expressed at paragraph 8 above. I also consider that in the absence of the concession there made Longmore LJ would not without more have referred in paragraph 88 to the power and ability, or perhaps the authority, conferred by virtue of ordination by the church. For the reasons I have endeavoured to state, I do not consider that ordination by the church is without more sufficient to attract vicarious liability to a diocesan bishop.

I mean no disrespect to Miss Gumbel when I observe that she struggled to identify a coherent principle the application of which should here lead to vicarious liability on the part of the bishop. I can identify no such principle. At the end of her address Miss Gumbel submitted that ultimately the test is whether it is fair that the person able to pay should be held liable. I do not believe that the law is so unprincipled. Moreover if the thinking is that behaviour so gross as that here alleged should attract a remedy I should like to believe that the Claimant will, upon proof of her allegations, in any event have a remedy against the First Defendants. It should not be overlooked that it is alleged that the First Defendants failed to heed or act properly upon information given to them of Father Baldwin having indecently assaulted two identified boys and moreover it is alleged that nuns of the First Defendants’ Order saw Father Baldwin sexually assaulting the Claimant. No monetary compensation can begin to redress the hurt and harm of abuse such as is here alleged, but on the pleaded allegations which we are assuming to be made out the Claimant will not I think be without a remedy if she is unable to recover from the Bishop, or more accurately from those who have agreed to meet any liability which attaches to him.

I have not found this an easy case to decide. The point we are asked to decide is elusive. However, addressing myself to the question in the narrow sense in which I have understood it as explained above, and having regard to the judge’s findings of fact on the basis of the evidence which was before him, I do not believe that it should be resolved in favour of the Claimant. I would allow the appeal.

It is common ground between the parties, by reference to settled authority, that in determining whether vicarious liability can be involved in a case of this kind there is a two-stage test. The first stage involves the relationship between the second defendants (to be equated in effect with the then diocesan bishop) and Father Baldwin. The second stage involves the connection between the relationship and the alleged acts of sexual abuse on the part of Father Baldwin.

This preliminary issue is concerned solely with the first stage. In a number of past cases of this general type (for instance, Maga) the relevant bishop or archbishop of the Roman Catholic diocese in question had conceded, for the purpose of the case in question, that the priest should be regarded as an employee: those cases have thus mainly focused on the second stage. But no such concession is made in the present case. To the contrary. The second defendants – as they are entitled to do – dispute that they can have any vicarious liability for the alleged acts of Father Baldwin at all. In taking that stance Lord Faulks QC, on behalf of the second defendants, emphasises that this is not in any way to detract from the abhorrence with which the second defendants regard sexual abuse or from the commitment of the Catholic Church to investigate allegations of abuse and to help bring perpetrators to justice.

The question thus is “whether the person who (allegedly) committed the tort was in such a relationship with another as to enable the concept of a vicarious liability to arise. In some circumstances difficult questions may occur in this regard….”: see paragraph 33 of the judgment of Lord Clyde in Lister.

This is undoubtedly a case of such difficulty. And the difficulty has been increased by two further considerations in the present case.

First, where a preliminary issue is directed there normally is an agreed statement of the primary (assumed) facts or an agreement that the facts alleged in the Particulars of Claim are assumed to be true or something like that. But here there was not even agreement as to whether Father Baldwin was – as the Particulars of Claim assert – the priest responsible for the parish of Sacred Heart Church, Waterlooville at the times in question (as opposed to being the diocesan Vocations Director based in Reading, as the second defendants say). At all events, the pleaded allegation is that he was. It is also pleaded that Father Baldwin was invited to visit the home and did so in the course of his duties as priest; and that JGE, while a resident of the home, was a parishioner of that church. It is further pleaded that the second defendants in the premises owed JGE a duty of care at all relevant times.

Second, the reality is in cases of this kind that, in terms of facts, there can be a significant degree of overlap between the first stage and the second stage. As put by Hughes LJ in the Institute of the Brothers of the Christian Schools case “it is a judgment upon a synthesis of the two [stages] which is required.”

It thus may strongly be queried, with hindsight, whether this was an appropriate occasion for a preliminary issue to be directed in this particular case.

I will not dwell further on the various policy considerations which are said to be the rationale for the doctrine of vicarious liability and which are examined at length by Ward LJ. But Lord Faulks at all events is entitled to emphasise that the application of the doctrine can cast liability on a person who may not necessarily himself be at any fault at all. He accordingly submits, citing authority for this purpose, that the doctrine should be kept within precise limits and is not to be extended indefinitely. That must be borne in mind. Even so, a review of the development of the doctrine over the last hundred years or so indicates that significant extensions (which is in reality what they are, even if they can also be styled as the higher courts declaring the law to be otherwise than it was previously thought or assumed to be) have from time to time been promulgated. The decision in Grace v Lloyd Smith & Co[1912] AC 716 is one example; Morris v CLS Martin & Sons Limited[1996] 1 QB 716 another; Lister itself another again. I would suggest that Viasystems – at least potentially – is a further example. So the law has not proved static in this area.

As worded, the preliminary issue directed here is confined to the circumstances of this case: “whether in law the second defendant may be vicariously liable for the alleged torts of Father Baldwin.” But underneath it is potentially a far greater issue (on the first stage of the application of the doctrine). That is – as I understood Lord Faulks to accept, and indeed assert, when Miss Gumbel raised this as the sub-text of the preliminary issue – whether a Roman Catholic diocesan bishop can ever be vicariously liable for the acts of a Roman Catholic priest in the diocese. Lord Faulks said that he never could be: or, even if he could be, then it would only be in exceptional circumstances (of which he could identify no instance). I would not necessarily agree that this preliminary issue can have quite so open-ended a consequence: but it unquestionably has significant ramifications for other cases of this kind.

So this preliminary issue potentially has wider implications. Moreover it does not have wider implications simply in cases involving Roman Catholic priests. There can be no special doctrine of vicarious liability for cases of this kind. This matter has to be decided by reference to and application of general principles of vicarious liability: cases involving sexual harassment or sexual abuse do not fall into any special category: see paragraph 48 of the judgment of Lord Clyde in Lister. Moreover, there could also be implications for the wider commercial sphere as Lord Faulks pointed out, referring to two interesting and forthright articles of Phillip Morgan in this regard: (2011) 74 MLR 932; (2012) Lloyds Maritime and Commercial Law Quarterly 175.

If one were baldly to pose the question: “Should the Roman Catholic church be liable for acts of sexual abuse of parishioners committed in the parish by the Roman Catholic priest?” that would doubtless beg the answer from a person who was a not a lawyer: “Yes, of course.” But that would be a simplistic and legally unprincipled approach. The focus, for present purposes, has to be directed at the actual relationship between the Roman Catholic diocesan bishop and the parish priest to see whether it is such as to at least be capable of giving rise to vicarious liability on the part of the diocesan bishop. Accordingly, I would dismiss as irrelevant Miss Gumbel’s assertion that the position should in principle be no different for Roman Catholic priests than it is for Anglican priests or Baptist ministers (she said nothing about, for example, Rabbis or Imams). As I have said, there is no special category for these kinds of case; and principle thus requires analysis of the particular relationship in question.

For that reason, I found of relatively limited significance employment cases such as Percy which were briefly cited to us. Unquestionably here the position is well removed on the facts from the position in Percy where the minister of the Church of Scotland was held (by a majority), though not an employee, to be under a contract personally to do work. (It is interesting, however, to note that Lord Hoffmann, in the minority, held that Ms Percy’s duties were not contractual at all but were the duties of her office: see at paragraph 66 of his judgment. That approach has at least some resonance with Lord Faulks’ submissions, given that a core part of his argument was that the alleged actions of Father Baldwin were committed by him as office holder). The subsequent decision of the Court of Appeal in Stewart (again an employment case) stresses the need for a close consideration of the facts, in this context; it also gave prominence to the potential relevance of an intention to create legal relations in a case of that kind.

I do have difficulty with some aspects of the reasoning of MacDuff J and with some aspects of the reasoning in the Canadian case of Doe v Bennett on which he heavily relied. The relevant relationship between the Roman Catholic diocesan bishop and the parish priest, for these purposes, has, as I see it, to lie in the appointment by the bishop of the priest as parish priest and such level of control as he has over him, in circumstances where it was common ground that there is no contract and no employment and indeed no intention to create legal relations as such at all. That, however, is not to be equated with the status of priesthood: many of the remarks made by MacDuff J and in Doe v Bennett seem to me, with respect, to go to the status that any priest has by reason of being an ordained priest. But that does not conclusively bear as such on the relationship between parish priest and diocesan bishop.

I also have some difficulty with MacDuff J’s emphasis on the “immense power”, as the judge put it (echoing sentiments expressed in Doe v Bennett, which in any case had very unusual facts) conferred on Father Baldwin. It can be said that such “power” as he had derived essentially from his office or status as priest, not from his appointment as parish priest. In Doe v Bennett it even seems to have been suggested (see paragraph 20 of the judgment, possibly echoed in paragraph 38 of the judgment of MacDuff J) that in putting a parish priest into a community a “risky enterprise” was being put into the community. I agree with Lord Faulks that simply is not a tenable proposition, let alone a justification for the creation of vicarious liability at this first stage. It is true that in Lister (at paragraph 83) Lord Millett stated that “experience shows that in the case of …. other residential homes for the young and vulnerable there is an inherent risk that indecent assault on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust.” But that was said in the context of a case relating to an employee at a children’s home and was dealing with the second – not first – stage for vicarious liability. In fact, it seems to me that the judgment in Doe v Bennett seems in places simultaneously to address, or to conflate, both stages of vicarious liability.

But, that said, I agree with the actual conclusion of MacDuff J. I do so because I am prepared to say, on the evidence, that the relationship between Roman Catholic diocesan bishop and parish priest is – even though governed by canon law – such as can be regarded as sufficiently akin to employment so that vicarious liability may properly and fairly arise. That the bishop was not, and could not be, Father Baldwin’s employer in law is not decisive (see Viasystems). I thus would accept the thrust of the proposition advanced by Miss Gumbel in her Respondents’ Notice.

That an appropriate level of control is ordinarily required for vicarious liability to be capable of arising is, I think, borne out by the authorities (including Doe v Bennett itself). That in fact accords with one of the underlying policy drivers which constitute the rationale for the doctrine. But, as the case of Viasystems also illustrates, the control does not have to be entire and absolute. What is the “appropriate” level of control for vicarious liability to be capable of arising? Obviously it will depend on the facts of the case. Further, it seems to me, in a context such as the present, pointers at this first stage are, if D can be vicariously liable for the torts of A, (1) that D has caused A to be placed in a position, or where D and A are otherwise in a relationship, whereby D is capable of having some control of A’s activities; and (2) that the activities are performed on behalf of or are designed to further the aims or interests or purposes (the latter word seemingly favoured by Lord Wilberforce in Launchbury v Morgans at p. 134-5) of D. In addition, an assessment – not by way of the sole applicable test (that would be unprincipled) but as a factor required to be taken into account – of whether it is fair, just and reasonable to make D liable should, in my view, also be made in each case.

In my view, on the evidence the bishop did have such a relationship with and capacity of control over Father Baldwin in his capacity as parish priest.

It is true that the judge held that there was “effectively no control over priests once appointed”. The judge further found that a Roman Catholic priest is free to conduct his ministry as he sees fit with little or no interference from the bishop, whose role is not supervisory and who is not in a position to make requirements or give directions. Lord Faulks understandably relied on those findings.

But those findings in my view do not fully reflect the reality of the position on the evidence and in any case do not conclude the issue in favour of the second defendant.

The experts were in essential agreement on most issues; albeit their joint written statement records a “difference in emphasis” on the level of control of a bishop. Dr Costigane emphasised the level of control whereas Monsignor Read emphasised that the bishop’s role was a safeguarding role rather than a managerial role. Monsignor Read also said (and in her oral evidence Dr Costigane did not controvert this) that a priest exercised his ministry more as a collaborator rather than someone subject to the control of his superior in the employment field. The evidence was that the parish priest was responsible for the running of his parish. But that does not, in my view, displace the proposition, by reference to the precepts of canon law, that the bishop did (in a meaningful sense) have a degree of control over Father Baldwin as appointed parish priest in the diocese. The judge himself expressly found that the bishop must exercise episcopal vigilance and that there was some element of control in that. Further, the bishop might visit a parish only once every five years or so; but he could do so more frequently. It is true that, as the above recited evidence shows, a bishop could not make requirements or give directions which the priest – unlike an employee – would in law be under a duty to obey. But, in my view, that does not indicate a lack of capacity and entitlement to control. It was common ground that, under canon law, the priest owes his bishop reverence and obedience. Bishops are commissioned to perpetuate the works of Christ (as stated by Monsignor Read in his report on behalf of the second defendant). In the present case the bishop had responsibility for the care of the diocese of Portsmouth, comprising 96 parishes at the time: it was to this parish in the diocese (on the alleged facts) that he chose to appoint Father Baldwin. On appointment, as Monsignor Read further said in his report, the responsibility for running a parish rests on the parish priest “subject to the oversight of the Bishop”: albeit the priest is not a delegate of the bishop.

That there was a sufficient level of control is, I think, confirmed by the (agreed) fact that a bishop has, under canon law, power to remove or transfer a parish priest against his will or to deprive him of his position as parish priest (although not from the priesthood altogether), in accordance with prescribed procedures under canon law. Moreover under canon law a bishop may of his own motion suspend a priest under his authority: canon 2186 of the 1917 Code. It may be noted that such a step may be taken not only where a priest is in breach of his responsibilities and duties under canon law: it can, at least in the case of transfer to another post, be effected “should the good of souls or the need or advantage of the church require it”. There was also undisputed evidence of Dr Costigane that, under canon law, appropriate penalties may be imposed on a priest if he does not obey the lawful precepts of his bishop (canon 2331).

I also consider that, in a real way, a parish priest such as Father Baldwin is furthering, and was appointed and entrusted to further, the bishop’s aims and purposes (that is, to perpetuate the works of Christ in the diocese – see Vatican II Decree on the Pastoral Office of Bishops in the Church, as cited by Monsignor Read). I bear in mind that in the Institute of the Brothers of the Christian Schools case it was stated by Hughes LJ (at paragraph 57) that vicarious liability on the part of the Institute could not be derived on the basis that brother-teachers were carrying out its purposes and were furthering the teaching mission of the Institute having been sent to the establishment in question for that purpose. But in my view that was said in the context of the facts of that case, where it was key that the Institute, whose mission was that of teaching, was not engaged in the business of running the teaching at the establishment in question: a point also emphasised by Pill LJ at paragraphs 84 to 87 of his judgment. It might be said (and Lord Faulks did say) that here too the bishop had not taken responsibility for running this particular home – rather, the first defendant had. But that is not an answer, to my mind. Here, the home was within the parish and (as alleged) JGE was one of Father Baldwin’s parishioners. His appointment by the bishop to the parish as parish priest necessarily, and as the bishop would have expected, carried with it responsibilities, as parish priest, to visit and promote the well being of parishioners. That JGE was at the relevant time in a home (within the parish) run by an order of nuns in my view does not displace that: indeed, I incline to regard it as little more than incidental for the purposes of the case against the second defendants. In any event, even if the first defendant may have a liability that does not preclude – as the case of Viasystems indicates – the second defendants from having a liability also.

I therefore consider that in the circumstances of a case such as the present the bishop had undertaken responsibility to promote the spiritual well-being of parishioners within the diocese, and had entrusted the furtherance of that aim within this parish to his appointed parish priest. Thus the appointment by the bishop of Father Baldwin to this parish was designed to further that overall aim. Of course it can be said that Father Baldwin’s activities as parish priest were for the benefit of parishioners (not the bishop); but that does not, in my view, displace the object and purposes for which he was appointed to the parish by the bishop in the first place.

For these reasons I would conclude that, although this was most certainly not an employment relationship or even a contractual relationship, the relationship between the bishop and Father Baldwin nevertheless was sufficiently akin to that of employment: and at all events was one such whereby, given the degree of control and connection and given the objectives of the bishop in the appointment of Father Baldwin which it was intended he should further and promote, vicarious liability in respect of his activities in the parish is capable of arising. For these purposes, I do not think it is a conclusive objection that the control and the connection do not arise under and are not in any way governed by the (common) law: it suffices, in my view, that they arise under and are governed by canon law. Further, checking to see whether that gives rise to a result which is just and reasonable, I think it does. Whether in any given situation that actually does impose liability on the second defendants for any particular alleged activity involves then going to the second stage: which is not a matter for decision for present purposes.

Although not central to my thinking, I consider that conclusion may be supported by this further consideration. Suppose a case (not this one) where a bishop is repeatedly and directly told in person of acts of abuse or misconduct on the part of a parish priest but takes no steps to investigate or prevent them. I would have thought, as at present advised, that a duty in law would be capable of arising in such a case (indeed, Monsignor Read accepted that under canon law an obligation to “take steps” would arise; in oral evidence, Dr Costigane also said that “if certain things don’t happen action can be taken”). It would be odd if it proved to be a duty of no real content, by being met with a plea that a bishop had no control over, or no means of preventing, such misconduct. In reality as I see it, he does – for example, by removing or transferring or suspending, where the priest misconducts himself or refuses to obey or follow the bishop’s guidance and advice. It also would be odd, as Miss Gumbel observed, if no breach of duty on the part of the bishop could be maintained if such complaints were raised not with the bishop directly but with priests on his staff (if I may use that word) who then do nothing. On Lord Faulks’ argument, the bishop would seem to have no vicarious liability for the omission of those priests to report the matter to the bishop, thus preventing him from taking some action.

Since preparing the substance of this judgment, I have read the draft judgments of Ward LJ and Tomlinson LJ. I have found the extensive discussion by Ward LJ of the authorities and academic commentaries most interesting. The divergence in viewpoints there manifested in part seems to be fashioned by competing attitudes as to the extent to which, as a matter of policy, an innocent defendant should (without fault) be made to bear responsibility for the wrongful acts of another. One can, at all events, understand the lament of Lord Hobhouse in Lister that an exposition of policy rationales cannot be equated with the applicable principles. The reality is, in my view, that because the doctrine of vicarious liability is a legal construct based on policy its application has depended on the weight given to the various policy rationales in particular cases and to changes in circumstances and public perceptions over the generations. The approach has, for better or worse, never been purist or static.

It will be apparent that in the result, on the (alleged) facts of this case, I have reached the same conclusion as Ward LJ. I have of course considered the points made by Tomlinson LJ, and I acknowledge their force. But, as will be gathered, my view is different. It may be that the bishop had no “formal legal responsibility” for Father Baldwin; but in my view his responsibility for and control over the parish priest whom he had appointed was real and substantial. I would, as will be gathered, attach importance to the fact that Father Baldwin had been appointed by his bishop as parish priest: that is not simply to be equated with his status as ordained priest.

I also do not, for myself, attach the importance that Tomlinson LJ attaches to the (alleged) fact that JGE was abused while at the home run by the first defendant or to the fact that she may have a claim against the first defendant. The present case is in this regard clearly distinguishable from the Institute of Christian Brothers case. To me, the important fact here is that JGE on the alleged facts was resident (at the home) as a parishioner; and Father Baldwin’s understood responsibilities, as part and parcel of his appointment by the bishop as parish priest, were designed to extend to ministering to those parishioners resident in the home, as part of the parish. I do not myself, with respect to Tomlinson LJ, consider it at all “contrived and unconvincing” to say that Father Baldwin, in ministering to the children in this home in the parish, was carrying out the purposes for which the bishop had appointed him as parish priest. It is, in my view, neither necessary nor appropriate linguistically to confine the consideration to concepts of “benefit” or “enterprise”.

In the result, therefore, although my reasoning would not be in all respects that of the judge, on the whole I think that he reached the right conclusion. I would dismiss the appeal.

The appellants now apply for permission to appeal to the Supreme Court. We acknowledge that the Court’s judgment in this case has widen the scope of vicarious liability extending it from well established situations of employment to relationships that are “akin to employment”. This has ramifications in other areas of the law and to that extent this case does raise a matter of some public importance. The issue was important enough for the Supreme Court of Canada to consider it. We also acknowledge that each of us has found the case difficult to decide on the facts. Nonetheless, we have decided, after some hesitation, to refuse permission to appeal. Rather than deal with a case decided as a preliminary issue, 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. Secondly we are aware that the Supreme Court are hearing the case of Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors on 23rd July and although Stage 1 is not at issue in that case, the Supreme Court will be better able than we are to judge whether this case raises other issues they may wish to hear next. This 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.