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In a case in which a Roman Catholic parish priest was said to have abused a young girl, and the question arose, as to potential vicarious liability, whether he was an employee, independent contractor, or in some other manner to be considered akin to an employee, the law as to vicarious liability was to be extended such that the question should be approached in a broader way, and also by reference to several tests, looking, inter alia, to whether the applicable status was akin to employment, and whether it would be just and fair to impose vicarious liability.
The Court of Appeal so stated (Tomlinson LJ dissenting) when dismissing the appeal of the second defendant, the Trustees of the Portsmouth Catholic Diocesan Trust, from a decision of Macduff J, sitting in the Queen’s Bench Division on 8 November 2011 [2012] 2 WLR 796; [2012] PTSR 633, holding, on the trial of a preliminary issue, that the second defendant might be vicariously liable for the alleged torts of a now late Roman Catholic parish priest of the diocese.
The claimant, JGE, had issued a claim against the first defendant, the English Province of Our Lady of Charity, and the second defendant trustees, alleging that, while resident at a children’s home run by the first defendant, she had been physically abused by the nun in charge of the children’s home. Further, it was alleged that the claimant was sexually abused by a certain Father Baldwin, who had visited the children’s home as part of his duties within the Roman Catholic Diocese of Portsmouth. It was agreed that, for the purposes of the claim, the second defendant had assumed the liabilities of the Roman Catholic Bishop of Portsmouth at the material time.
Lord Justice WARD said 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 in question was within the scope of the employment.
This case concerned only stage 1 and the conclusion was that Father Baldwin had been neither an employee, since there had been no contract of service, nor an independent contractor. Hower the law as to vicarious liability was apt to be extended; and the fact was that the bishop could be liable if the relationship was “akin to employment”, that is, so close in character to one of employer/employee that it was just and fair to hold the employer vicariously liable. In this respect the preist (Father Baldwin) was an employee.