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Vicarious Liability: Office Holders

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It is an established principle that in certain relationships, usually employer and employee, one person is held responsible for the wrongs of another even though he may not himself be at fault. There is a two stage test:

1) is the relationship one to which the principles of vicarious liability may attach; and

2) whether the act (or omission) in question was within the scope of that relationship.

Liability is imposed on one party (usually an employer) not because of any personal fault but on the basis that he should compensate those who are injured by the negligent activities of his employees. The assumption is that the employer is best able to spread the risk by pricing and insurance and therefore better able to bear that risk. Consequently he is encouraged to control the risk.

As to the second part of the test, the employer was held liable for the wrongdoing of the employee in the course of his employment though in recent cases liability has been extended by the Huse of Lords to wrongs so closely connected with his employment that it would be fair and just to hold the employer vicariously liable: Lister v Hesley Hall in which it was held that the proprietor of a boarding school was vicariously liable for abuse committed by its employee.

In MAGA v RC Archdiocese of Birmingham the Archdiocese conceded that, on the stage test, a priest involved in sexual abuse could be regarded as an employee even though, technically, an “office holder” but contested liability on the second stage test. The Court of Appeal held that the Archdiocese was vicariously liable under the close connection test.

That concession as to the relationship was not made in the recent case of JGE v Portsmouth RC Diocesan Trust. It was fought on the first stage test and it was strongly argued that the relationship between the diocese and the priest was not akin to employment in that the Diocese was not in position to exercise control over the priest who had committed acts of rape and sexual abuse. Appointments of priests were made verbally, the terms and conditions being derived from canon law. There was no effective control over a priest and the bishop was not in a position to give directions. The priest received no financial support from the diocese. The priest was the ‘holder of an office’ rather than an ’employee’.

Nevertheless Mr Justice MacDuff held that the Diocese should be held responsible for the ‘actions which they initiated by the appointment’.