Monday, 16 January 2012

Vicarious Liability for Intentional Tort

Royal Courts of Justice, London
In what circumstances should a person (D) be liable in tort for the intentional tort (e.g. an assault) committed by another person (T)?  In other words, when may D be vicariously liable in tort for the deliberate act of T?   May a diocesan bishop be held vicariously liable for the torts of a priest of his diocese?  The latter question arose in the JGE case.

The JGE case:

In November 2011, MacDuff J handed down his eminently clear and concise judgment on a preliminary point in the case of JGE v (1) The English Province of Our Lady of Charity (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) 1. 

For the purposes of this litigation, the Trustees stood in the place of the Bishop of Portsmouth.  The issue was whether the diocesan bishop could be held vicariously liable for the torts (civil wrongs) of a Priest (Father Baldwin - now deceased) of his diocese.  It is alleged that, in the early 1970s, Father Baldwin had sexually abused the claimant (JGE) who is a lady now aged 46.  Thus, the case raised, not for the first time, the tricky question of vicarious liability for an intentional tort.  This is one aspect of the wider subject of Vicarious Liability in Tort. 

It is important to note
at the outset that MacDuff J did not rule that the Bishop is liable.  The learned judge was concerned with the sole (preliminary) question of whether the relationship between the Priest and the Bishop was a relationship in which vicarious liability in tort could arise.  It was decided that it could and so the preliminary point was decided in the claimant's (JGE) favour.  Whether actual vicarious liability is eventually established will be for the trial judge to decide.

Vicarious Liability:  is an interesting and long-standing legal concept.  Where it applies, it makes a person liable in tort where that person may not be personally at fault for the actual commission of that tort.  Furthermore, it is a liability derived from the tort of another.  However, until relatively recent times, it was rare that the courts  imposed vicarious liability where the tort was intentional - e.g. a sexual assault.  (For exceptions see, for example, Lloyd v Grace, Smith and Co [1912] AC 716 - solicitor's firm held vicariously liable for actions of managing clerk and Morris v C W Martin [1966] QB 716).

The most typical, but not the only, cases of vicarious liability are where employers are held liable for acts of their employees carried out during the course of the employee's employment.  Various justifications have been advanced for this and, as MacDuff J stated, "There is no precise unanimity between judges (or between academics) about the rationale; no single accepted truth."  In Viasystems (Tyneside) [2005] EWCA Civ 1151, Rix LJ said  -

"The concept of vicarious liability does not depend on the employer's fault but on his role. Liability is imposed by a policy of the law upon an employer, even though he is not personally at fault, on the basis, generally speaking, that those who set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently. Liability is extended to the employer on the practical assumption that, inter alia because he can spread the risk through pricing and insurance, he is better organised and able to bear that risk than the employee, even if the latter himself of course remains responsible; and at the same time the employer is encouraged to control that risk."

The modern approach:  As a result of a considerable number of cases - (some are listed below) - the approach to whether a person should be held vicariously liable involves two stages though the factual circumstances will be relevant to both.  It is convenient to refer to the parties as D (defendant) and T (tortfeasor).

Stage 1 - Consider the relationship between D and T - was it a relationship to which the principles of vicarious liability should apply?   This requires factual analysis of the "nature and closeness of the relationship"between D and T.   In the actual relationship which existed is it now just and fair for the defendant to be responsible for the acts of the tortfeasor?  This requires "close scrutiny of (i) the connection and relationship between the two parties and (ii) the connection between the tortious act and the purpose of the relationship / employment / appointment."  (In JGE, the MacDuff J ruled on this stage).

Stage 2 - The second involves an inquiry into the act or omission of T which is in question; whether the act was within the scope of the employment (or other relationship).  (In JGE, the judge did not rule on this stage which will be left to the trial judge).

These are both fact sensitive inquiries.   Whether, overall, vicarious liability should be imposed seems to depend on a "sythesis" of the two stages - see judgment of Hughes LJ in Various Claimants, the Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian Schools and others [2010] EWCA Civ 1106 at para 37.

An out of control beast?   The present legal position is open to the criticism that the test is vague and uncertain.  In the 2010 case of MAGA v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, Lord Neuberger MR noted (at para 81) - "... it may be necessary to have in mind the policy behind the imposition of vicarious liability. That is difficult because there is by no means universal agreement as to what that policy is. Is it that the law should impose liability on someone who can pay rather than someone who cannot? Or is it to encourage employers to be even more vigilant than they would be pursuant to a duty of care? Or is it just a weapon of distributive justice. Academic writers disagree and the House of Lords in - Lister and others v Hesley Hall Ltd [2001] UKHL 22 - did not give any definitive guidance to lower courts."  Subsequent case law has not done much to either clarify or limit the scope of the test to be applied.

It certainly seems desirable that vicarious liability should exist, in some circumstances, for intentional torts.  However, whilst the decided cases reveal factors to be considered (e.g. degree of control etc), the courts have struggled to define the precise test for vicarious liability and have arrived at a "close connection" test to be applied so as to reach a synthesis of the two stages described and notions of what is "just" and "fair" are involved making the law unpredictable.

This test has been subjected to some intense criticism, notably in an article by Dr Claire McIvor of Birmingham Law School who argues that the "close connection test" lacks a sound theoretical foundation and is "worryingly bereft of any effective control mechanisms."  It is a vague and unpredictable test.  "The courts appear to have lost sight of the fact that, as a form of no-fault liability, the doctrine of vicarious liability occupies a highly exceptional position within English tort law, and that its existence is justified by reference to specific distributive justice considerations."

It is perhaps for these reasons that the matter of how and when vicarious liability should be imposed could be headed for the Supreme Court.   Whether it will get there depends on there being an appropriate case and only time and the vagaries of litigation will determine whether the JGE case becomes that case.

Some of the many decided cases: 

ST v North Yorkshire County Council [1998] EWCA Civ 1208 -  sexual assault at special school - overruled by the House of Lords

Lister and others v Hesley Hall Ltd [2001] UKHL 22 - sexual assault at school

Dubai Aluminium v Salaam and other [2002] UKHL 48

Mattis v Pollock [2003] EWCA Civ 887- Judge, Dyson LJJ and Pumfrey J -  "Flamingo Nightclub" doorman case

Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34 - whether an employer is vicariously liable for harassment committed by an employee in the course of his employment.

Maga v Trustees of the Birmingham Archdiocese [2010] EWCA Civ 256 - sexual abuse - 1975 and 1976 -  by a priest

Supreme Court of Canada decisions - "persuasive authority" in England

Bazley v Curry  [1999] 2 SCR 534 - sexual abuse in residential care for emotionally troubled children - the defendant's employees were essentially substitute parents and had to carry out intimate care e.g. changing etc. - vicarious liability imposed.

Jacobi v Griffiths  [1999] 2 SCR 570 - sexual abuse at Club for young people which provided recreational facilities - vicarious liability not imposed. 

Doe v Bennett and others  [2004] 1 SCR 436 - sexual abuse involving Roman Catholic Priest

Judicial Committee of the Privy Council - persuasive authority - I would add "highly" given the composition of the Board - Lords Bingham, Steyn, Millett, Scott and Carswell.

Bernard v Attorney-General of Jamaica [2004] UKPC 47 - vicarious liability for the unlawful shooting on 11 February 1990 of Mr Clinton Bernard by a constable of the Jamaica Constabulary Force.

and see Weddall v Barchester Health Care Ltd and Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25 and also E L v The Children's Society [2012] EWHC 365 (QB) judgment of Haddon-Cave J.

Some Academic and other Analysis:

See the excellent and detailed article by Dr Claire McIvor - Birmingham Law School - "Use and abuse of the doctrine of vicarious liability"

Social Science Research Network - "A frolic in the law of tort: expanding the scope of employer's vicariously liability."

Old Square Chambers - "The evolution of vicarious liability in tort in respect of deliberate wrongdoing" - Paul Rose QC

One Crown Office Row - Vicarious Liability for Intentional Torts
See also UK Human Rights - "Bishop can be vicariously liable for Priest Sex abuse rules High Court"


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  3. The Court of Appeal has heard an appeal against the finding of McDuff J. Judgment is awaited. See The Guardian 21st May 2012

  4. Comment received from Chris Morley. (I have made the links supplied by Mr Morley into "live" links)

    The Court of Appeal allowed this appeal - judgment:

    Guardian news report

    The Trustees of Portsmouth diocese issued a statement: they are considering whether to seek leave from the Supreme Court for an appeal

    The Supreme Court will soon hold a two day hearing into another vicarious liability decision of the Appeal Court relating to alleged child abuse (this time by 35 Christian Brothers and others at a Middlesbrough school against 170 former pupils) on 23 July 2012;