UK: Bishop Vicariously Liable For Priest Alleged Sexual Abuses

The English Court of Appeal, by a majority held that the Diocese of Portsmouth is liable for alleged sexual abuses by a priest.

The claimant, known as JGE in her legal action against the Diocese, claims that she was raped and sexually abused by one Fr. Wilfred Baldwin whilst she was placed in a home run by nuns in May 1970.

Fr. Baldwin, who had access to the home, was regularly invited or permitted by the nuns to visit the home and did so in the course of his duties as a priest of the diocese.

The Court of Appeal was called upon to decide the finding by the High Court that the Diocese was vicariously liable for Fr. Baldwin. In their grounds of judgment, Lord Justice Ward and Lord Justice Davies were of the view that there is no contract of service in the appointment of Fr. Baldwin by the Bishop of the Diocese, since there was no intention to create any legal relationship between them. Hence, they concluded that there is no relationship of employer/employee between them.

However their Lordships went further to consider whether the Bishop can be held vicariously liable if the relationship between the Diocese and the priest is akin to employment. Lord Justice Ward held that for public policy reasons, the remedy to an innocent victim against an ‘employer’ of the wrongdoer cannot be ignored.  He said, “We need to adapt to the current demands.”

In their deliberation, their Lordships were of the view that the Bishop had sufficient control over their priests by reference to several provisions of canon law that included the following:
(a) the priest owes his Bishop reverence and obedience,
(b) that a Bishop has 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),
(c) that a Bishop may of his own motion suspend a priest under his authority,
(d) that the Bishop can transfer a priest to another post for breach of his responsibilities and duties and
(e) that the Bishop can inflict appropriate penalties on a priest if he does not obey the lawful precepts of his Bishop.

Their Lordship considered that these elements were sufficient to give rise to a relationship akin to employment between the Bishop of the Diocese and priests. Their Lordships concluded that premised on the presence of such control, the Bishop is vicariously liable for the priest.

This finding was made despite their Lordships having considered that canon law equally provides that the priest decides for himself how he runs his parish and he is not salaried, which allows a priest to conduct his affairs independently of the Bishop.

Lord Justice Tomlinson in his dissenting judgment held that there can be no vicarious liability that can be conferred on a Bishop for the acts of his priests since neither the church nor the Bishop derived a benefit from the activities of the priests within the diocese. He further held that a priest undertakes his ministry for the benefit of the souls in his parish.

The majority decision of the Court of Appeal has extended the current law on vicarious liabilities. The element of ‘control’ seem to be the emphasis of the Court to hold the Bishop or his diocese vicarious liable for his priest. Such element of control equally appears in other relationships, such as one of parent/child and too some certain extend between husband/wife.

It would remain to be seen if the decision would apply to, for instance, vicarious liability of parent for the acts of their children or if one spouse could be held vicariously liable for the tort of his/her spouse. Perhaps, these are the dangers of attempting to expound the law to ‘meet current demands”.

The full text of the Court of Appeal decision can be found on this link: http://www.judiciary.gov.uk/media/judgments/2012/jge-portsmouth-roman-catholic-diocesan-trust

STATEMENT BY PORTSMOUTH DIOCESE FOLLOWING THE COURT OF APPEAL’S JUDGMENT

The following statement is issued on behalf of the Trustees of the Roman Catholic Diocese of Portsmouth in response to the judgment by the Court of Appeal in respect of vicarious liability in the case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust.

We brought this appeal in order to achieve clarity as to the nature and extent of the bishop’s liability for the actions of diocesan priests. A number of judgments in recent years have sought to extend the scope of vicarious liability, which is designed for relationships of employment, to very different relationships, including that between a bishop and his priest, who is an office holder and not an employee.

We had not just the right but the duty to ask the Court of Appeal to hear the different arguments in this case, not least because of the far-reaching implications to faith and other voluntary organisations of extending vicarious liability in this way.

The decision, although disappointing, was not unanimous, which emphasizes the complexity of this area of the law. The two judges who found against us acknowledged the force of our arguments and all three appeal judges commented on the difficulty of reaching a decision. The judges also referred to the wide-reaching ramifications of the decision, not just for the Church but for other organisations, both charitable and commercial.

Because this case raises complex questions of law of real public importance, the Trustees will now be seeking advice from leading counsel as to a potential appeal to the Supreme Court.

This case is not, and has never been, about seeking to avoid or delay the payment of compensation to victims with valid claims. The Diocese has for years been offering support to clerical abuse victims, and the law rightly allows victims to sue for damages on grounds of negligence, or, of course, to seek redress from the actual perpetrators of the abuse.

This case is about fundamental legal principles involving the very nature of civil society and religious freedom. It would be disastrous if, in seeking to provide redress for victims of harm, the law put intolerable new pressures on the voluntary sector. This judgment shows further thought and scrutiny are required before clarity in this regard can be established.