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Blind Men and Elephants: The Doctrine of Vicarious Liability in Sex Abuse Cases

On 8 November 2011, MacDuff J gave judgment, in the case of JGE v The Trustees of the Portsmouth Catholic Diocesan Trust, on a preliminary issue concerning whether the defendant diocese was vicariously liable for the acts of a priest. This is yet another example of the incremental development of the doctrine of vicarious liability in respect of the criminal acts  of third parties. I don’t propose to say much about this case other than watch this space, given that MacDuff J - acknowledging the wider importance of his decision - has given the diocese permission to appeal against his ruling.

The judgment is available on Lawtel for those who are interested in reading it.

The Claimant alleges that back in the early 1970s she was sexually abused and raped by a priest whose parish fell within the remit of the Defendant diocese. The allegations of sex  abuse are matters which are yet to go to trial. The preliminary issue concerned the question of whether the relationship between the diocese and priest is one to which the former would be held vicariously liable for the actions of the latter.

Priests are not ‘employed’ in the ordinary sense of the word by the diocese. The diocese has no ‘control’ over the priest in the way that an ordinary employer may have over his employee or sub-contractor for that matter. The priest runs his ministry in the way he chooses to and the relationship between the parish and diocese is one of ‘collaboration’. There is no financial support provided by the diocese, the priests’ income comes from the collection box. All of this is relevant because applying the established principles, one would not immediately reach the conclusion that the relationship is one in which the diocese could be said to be vicariously liable.

On this preliminary issue MacDuff J reviewed the authorities in this area and concluded that the diocese was liable in law for the acts of the priest because there was a ‘closeness of connection’. The impetus for his reasoning appears to come from the jurisprudence concerning the question of whether an act/ omission were carried out in the course of employment viz. Lister v Hall. In those cases there was never any question of whether the rogue was in the employ of the Defendant.

Further he recognised that the existence is easier to recognise than define. A matter of judicial taste! The Hindu parable of the blind men and the elephant comes to mind. To many this may be seen as a step closer towards decisions being made on arbitrary, case-by-case, touchy-feely basis with no clear consistency in approach.


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