ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE MACDUFF
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE DAVIS
|- and -
|The Trustees of the Portsmouth Roman Catholic Diocesan Trust
Miss Elizabeth-Anne Gumbel QC and Mr Justin Levinson (instructed by Emmott Snell & Co) for the respondent
Hearing date: 17th May 2012
Crown Copyright ©
Lord Justice Ward:
"Neither they nor the incumbent bishop had any power to remove Father Baldwin from the priesthood, any power to move or remove Father Baldwin from his office against his will other than in accordance with the process set out in the Code of Canon Law (which requires proof of a grave cause under canon law) nor any power to give directions as to how that office was to be carried out as the requirements appertaining to any particular office are set out in the universal and particular canon law applying to the office concerned. The Second Defendants and/or the incumbent bishop could only issue guidelines for the whole Diocese through Episcopal decrees (usually promulgated through letters sent to all the clergy) and only exercised oversight or vigilance as to how universal and particular canon laws were being carried out in each parish and how far each priest was fulfilling responsibilities of office through periodic visitation of each parish (specified in canon law as being at least once every five years)."
Thus it is denied that Father Baldwin was in the service of the second defendants: he was at all times following his vocation and calling as a priest. It is denied that he abused or assaulted the claimant as alleged or at all. Relevantly to this appeal, it is denied that the second defendants are vicariously liable for the acts or omissions of priests in the diocese: a priest is the holder of an office not an employee of the second defendant.
"There is no direct control in the sense the bishop is checking what a priest does every single day, but there is a level of control in the sense that if certain things don't happen then action could be taken or, for example, if he starts reading out the Koran instead of the Bible, there would be an issue there, I think. So in terms of levels of control I think it is a question of understanding what is meant by "control" in terms of direction. I would say, that is the key; and also "vigilance" as well."
She agreed with Lord Faulks QC for the defendants that there was a process to follow if the bishop wished to dismiss a priest or remove him:
"Q. You cannot just go through and say, as it were, "I am terminating your office", there is a strict procedure?
A. There is a procedure, yes.
Q. And that is dealt with in a little more detail by Monsignor Read, and I think you accept he is right about that?
Q. And there has to be grave cause, I think?
"To remove someone from the office of parish priest there is a set procedure set out in the Code of Canon Law, both in the 1917 Code and the present Code. Basically that involves the Bishop having sufficient cause to remove a priest. It does not necessarily imply fault, it might be for health reasons that the priest is unwilling to acknowledge. He will ask him to resign, and if he declined then he would weigh the matter with two assessors who are appointed for that purpose. If he was minded to persevere in asking the priest to resign then he would do so, he would invite the priest to submit his reasons for not resigning and any evidence that he might wish to produce in favour of his argument and he would then, once again, weigh the matter with the two assessors. If he were determined to remove the priest at that point then he would issue a decree to that effect, but the priest concerned would have the right of recourse to Rome against his decision."
He repeated his written opinion that:
"Neither the bishop nor the priest would regard their relationship as having legal consequences or as one that would be adjudicated by the civil courts. The means of financial support provided for a parish priest is largely dependent on the free will offerings of the faithful. In a poor parish he may well have little disposable income or even go hungry. The office of parish priest is in the gift of the bishop and is not something that is advertised or can be applied for. The priest is not free to choose where to go but must accept the direction he is given. On the other hand, once he has been appointed he has great freedom in how he carries out the responsibilities attached to his office.
Of course it is for the court to decide whether at the material time Fr Baldwin was parish priest of , but for the reasons I have given my opinion is that in terms of Roman Catholic canon law, belief and practice, Fr Baldwin's relationship with the bishop or the Trustees of the Diocese of Portsmouth would not be considered that of an employee but rather that of the holder of an ecclesiastical office as described in the 1917 Code of Canon Law."
"Whoever pertinaciously does not obey the Roman pontiff or a proper Ordinary or other competent authority shall be punished with appropriate penalties."
When he wrote in his written opinion that the diocesan bishop exercised no direct control over the way in which parish priests fulfil their office, he meant by "direct" that "he (the bishop) would not give detailed instructions as how they were to exercise the role of parish priest to them as individuals but rather issue norms through the Ad Clerum to the clergy as a whole, as particular policy or things of that kind. If it came to the bishop's attention that a priest was in breach of ecclesiastical law, he would have the right and duty to take action."
"29 (i) Within the Diocese of Portsmouth, priests are informed of their appointments verbally; these are then announced "Ad Clerum" in a circular letter sent out to the clergy. There are no terms and conditions other than those derived from canon law. Vacancies are not advertised and there is no form of contract, no offer and acceptance, and no terms and conditions. The appointment is subject only to the provisions of canon law.
(ii) There is effectively no control over priests once appointed. Within the bounds of canon law, a priest is free to conduct his ministry as he sees fit, with little or no interference from the bishop, whose role is advisory not supervisory. A bishop has a duty of vigilance but is not in a position to make requirements or give directions. Although I was told that a parish visit would be every five years, it could have been more frequent. The bishop has no power of dismissal. Dismissal from office would have to be effected through the Church in Rome.
(iii) At the time of these events, priests did not receive any financial support from the Diocese. Each parish was responsible for generating sufficient income to support its parish priest. Remuneration came mainly from the collection plate. The priest would withdraw the funds required to pay for his basic living expenses. There was no fixed amount payable and the priest would take what he decided was appropriate. Father Baldwin was considered to be an office holder by the Inland Revenue and was so treated for income tax and national insurance purposes.
(iv) There is a joint statement of the canon law experts; and there is little between them. Within each diocese is a bishop whose appointment is from Rome. The bishop appoints a priest to each parish within the diocese. The bishop must exercise Episcopal vigilance. There is clearly some element of control within this, although there is nothing in the way of penalty or enforcement; the purpose is to oversee and advise. The bishop may redeploy the priest in another parish if the latter consents.
(v) There are a number of differences between the relationship and a standard contract of employment. The priest owes the bishop reverence and obedience but he exercises his ministry as a co-operator and collaborator rather than as someone who is subject to the control of his superiors. There are various requirements made of the priest by canon law with provisions as to prescribed penalties; but the experts agree that "these are not akin to those seen in situations of managerial supervision in secular employment". Matters such as duties, financial support and time away from the parish are left to the general provisions of canon law.
(vi) It seems to me clear that as Lord Faulks QC submitted a bishop and priest would not regard their relationship as being one that could be adjudicated upon by the civil courts; and Father Baldwin would have been considered as the holder of office rather than an employee of the defendants."
"30. In so far as the defendants submit that this relationship differed from employment in a number of ways, I am able to agree. There are many significant differences; lack of the right to dismiss; little by way of control or supervision; no wages and no formal contract.
31. I have to determine whether the vicarious responsibility may attach to the relationship between Father Baldwin and the defendants notwithstanding that it was a relationship which differed in significant respects from a relationship of employer and employee. "
"34. I have no hesitation in adopting that approach [the approach set out in paragraph 20 of the judgment of McLachlin CJ in Doe]. There is a "close connection test" at both stage 1 and stage 2. At stage 2 the close connection is between the tortious act and the purpose and nature of the employment/appointment. At stage 1 the closeness of the connection is between "the tortfeasor and the person against whom liability is sought".
35. There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to their work; to undertake the ministry on behalf of the defendants for the benefit of the Church. He was given full authority of the defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with the full authority and was given free reign to act as representative of the Church. He had been trained and ordained for that purpose. He had immense power handed to him by the defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused.
36. Why, one may ask, does it matter that some of the features of a classic contract of employment do not apply here? What is the relevance to the concept of vicarious liability, for example of the lack of a formal agreement with terms and conditions; or of the manner of remuneration; or of the understanding that the relationship was not subject to adjudication by the secular courts? Those features may have relevance in a different context, but not to the question of whether, in justice, the defendant should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf."
"42. Of particular relevance to stage one will be the nature and purpose of the relationship: whether tools, equipment, uniform or premises were provided to assist the performance of the role; the extent to which the one party has been authorised or empowered to act on behalf of the other; the extent to which the tortfeasor may reasonably be perceived as acting on behalf of the authoriser. This is not an exhaustive list. Every case will be fact specific and other factors will become apparent as and when they occur. The extent to which there is control, supervision, advice and support will be of relevance but not determinative. Where the tortfeasor's actions are within the control and supervision of the third party, the relationship will be the closer. Control is just one of the many factors which will assist a judge to the just determination of the question. That question will be whether on the facts before the court, it is just and fair for the defendant to be responsible for the acts of the tortfeasor not in some abstract sense, but following a 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.
43. In this case, the empowerment and the granting of authority to Father Baldwin to pursue the activity on behalf of the enterprise are the major factors. In my judgment, whether or not the relationship may be regarded as "akin to employment" the principal features of the relationship dictate that the Defendants should be held responsible for the actions which they initiated by the appointment and all that went with it. Accordingly, this preliminary issue is determined in favour of the Claimant."
Vicarious liability its origins and its ordinary application
Is a priest an employee?
"7. The existence of a contract of service between a minister of religion and his church is a question courts have considered on several occasions. In In Re National Insurance Act 1911: In Re Employment of Church of England Curates  2 Ch 563, 568, 569, Parker J held that a curate in the Church of England was not employed under a 'contract of service' within Part I (a) of the First Schedule to the National Insurance Act 1911: "the position of a curate is the position of a person who holds an ecclesiastical office, and not the position of a person whose rights and duties are defined by contract at all". Thus Parker J contrasted the position of an office holder and a person whose functions are defined by contract.
8. In Scottish Insurance Comrs v Church of Scotland (1914) SC 16 the Court of Session reached the same conclusion regarding assistants to ministers, not to be confused with associate ministers, of the Church of Scotland. Applying the "control" test used in identifying a contract of employment, an assistant to a minister was not subject to the control and direction of any particular master. An assistant holds an ecclesiastical office and performs his duties subject to the laws of the church: Lord Kinnear, at p 23. Lord Kinnear added that in any event there was difficulty in identifying exactly who was the assistant's employer. Lord Johnstone noted that employment must be under a contract of service. A contract of service assumes an employer and a servant. It assumes the power of appointment and dismissal in the employer, the right of control over the servant in the employer, and the duty of service to the employer in the servant. There was no one who occupied that position. The contract in which the assistant was engaged was more a contract for services than a contract of service: pp 26-27.
9. The Court of Appeal decision in President of the Methodist Conference v Parfitt  QB 368 concerned an unfair dismissal claim brought by a Methodist minister. The issue was whether the parties had entered into a contract of service. The court held that having regard to all the circumstances it was impossible to conclude that any contract, let alone a contract of service, came into being between a newly ordained minister and the Methodist Church when the minister was received into full connection.
10. The same question arose for decision by your Lordships' House in Davies v Presbyterian Church of Wales  1 WLR 323. The case concerned an unfair dismissal claim by a minister of the Presbyterian Church of Wales who had been inducted pastor of a united pastorate in Wales. Lord Templeman delivered the leading speech. He held that the claimant could not point to any contract between himself and the church. The book of rules did not contain terms of employment capable of being offered and accepted in the course of a religious ceremony.
11. The same issue arose again in Diocese of Southwark v Coker  ICR 140, this time in the context of an unfair dismissal claim by an assistant curate of the Church of England. Again the claimant failed. Mummery LJ analysed the reason underlying the absence of a contract between a church and a minister of religion in these cases as lack of intention to create a contractual relationship. He said, at p 147, that the special features surrounding the appointment and removal of a Church of England priest as an assistant curate, and surrounding the source and scope of his duties, preclude the creation of a contract "unless a clear intention to the contrary is expressed". Mummery LJ noted that under the employment protection legislation the relevant right of an employee is not to be dismissed by his employer. He then considered and rejected one by one the possible candidates for the role of employer in that case. The Diocese of Southwark was not a legal person with whom a contract could be concluded. The Church Commissioners paid Dr Coker's stipend and the Diocesan Board of Finance made the necessary arrangements for the payment. But neither of them appointed him, removed him or had power to control the performance of his services. It was not contended that either of Dr Coker's vicars had a contract with him. That left only the bishop of the diocese. The bishop had legal responsibility for licensing the appointment of assistant curates and the termination of their appointments. But that relationship was "governed by the law of the established church, which is part of the public law of England, and not by a negotiated, contractual arrangement": p. 148."
" Lord Nicholls' reasoning at paragraph 23, is not that of overruling the earlier cases and Davies would not in any case be overruled unless expressly. What Percy does, however, establishes that the fact finding Tribunal is no longer required to approach its consideration of the nature of the relationship between a minister and his church with the presumption that there was no intention to create legal relations. The earlier cases, as explained, do not exclude that possibility; strong statements in Percy leave it open to employment tribunals to find, provided of course a careful and conscientious scrutiny of the evidence justifies such a finding, that there is an intention to create legal relations between a church and one of its ministers "
"47. The religious beliefs of a community may be such that their manifestation does not involve the creation of a relationship enforceable at law between members of the religious community and one of their number appointed to minister to the others, whether the appointment is by the local congregation or under an episcopal form of government. The law should not readily impose a legal relationship on members of a religious community which would be contrary to their religious beliefs. These beliefs and practices may be such, in the context of a particular church, that no intention to create legal relations is present. To take them into account does not involve any departure from ordinary contractual principles, especially in the light of Article 9 [of the European Convention on Human Rights].
48. The religious beliefs held in a church may throw light on the nature of the relationship between it and its ministers."
"15. The distinction between holding an office and being an employee is well established in English law. An important part of the background to this distinction is that in the past an employer could dismiss a servant without notice, leaving the servant with any claim he might have for damages for breach of contract. By way of contrast, some office holders could be dismissed only for good cause. Thereby they were insulated against improper pressures. So the focus in master and servant cases was often on the question whether there was an element of public employment or service, or anything in the nature of an office or status capable of protection: Malloch v Aberdeen Corporation  1 WLR 1578, 1595.
17. The distinction between holding an office and being an employee has long suffered from the major weakness that the concept of an "office" is of uncertain ambit. The criteria to be applied when distinguishing those who hold an office from those who do not are imprecise. In McMillan v Guest  AC 561, 566, Lord Wright observed that the word "office" is of indefinite content. Lord Atkin suggested, at page 564, that "office" implies a subsisting, permanent, substantive position having an existence independent of the person who fills it, and which goes on and is filled in succession by successive holders. As Lord Atkin indicated, this is a generally sufficient statement of the meaning of the word. It is useful as a broad description of the ingredients normally present with any office.
18. Holding an office, even an ecclesiastical office, and the existence of a contract to provide services are not necessarily mutually exclusive."
(1) each case must be judged on its own particular facts;
(2) there is no general presumption of a lack of intent to create legal relations between the clergy and their church;
(3) a factor in determining whether the parties must be taken to have intended to enter into a legally binding contract will be whether there is a religious belief held by the church that there is no enforceable contractual relationship;
(4) it does not follow that the holder of an ecclesiastical office cannot be employed under a contract of service.
Vicarious liability arising out of a relationship akin to employment
(1) The Canadian Supreme Court case of John Doe
"In Bazley, the court suggested that the imposition of vicarious liability may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine whether the case should attract vicarious liability. "If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability": Bazley, at para. 15 Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. Effective compensation is a goal. Deterrence is also a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second, the wrongful act must be sufficiently connected to the conduct authorised by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met."
"The relationship between the bishop and a priest in a diocese is not only spiritual, but temporal. The priest takes a vow of obedience to the bishop. The bishop exercises extensive control over the priest, including the power of assignment, the power to remove the priest from his post and the power to discipline him. It is akin to an employment relationship. The incidents of control far exceed those characterising the relationship between foster parents and the government ... and the priest is reasonably perceived as an agent of the diocesan enterprise. The relationship between the bishop and the priest is sufficiently close. Applying the relevant test to the facts, it is also clear that the necessary connection between the employer-created or enhanced risk and the wrong complained of is established." I have added the emphasis.
"had enormous stature because of his position as parish priest, both to the boys and to their parents. The plaintiffs perceived him as a "god" quite logically given his centrality in the community and the disparity in lifestyles between himself and his parishioners. As the school principal testified, " people believed that the priest could turn you into a goat."
Nevertheless, it is an authority from a powerful court which commands respect even if it is not binding upon us.
(2) Viasystems (Tyneside) v Thermal Transfer (Northern) Ltd  QB 510
"46. In summary, therefore, there has been a long-standing assumption, technically unsupported by authority binding this court, that a finding of dual vicarious liability is not legally permissible. An assumption of such antiquity should not lightly be brushed aside, but the contrary has scarcely been argued and never considered in depth. This is not surprising, because in many, perhaps most, factual situations, a proper application of the Mersey Docks [Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947 AC 1] principles would not yield dual control, as it so plainly does in the present case. I am sceptical whether any of the cases from this jurisdiction which I have considered would, if they were re-examined, yield dual vicarious liability.
48. Academic commentary tends to favour the possibility of dual vicarious liability, but feels that authority constrains it. Other jurisdictions have reacted variously, giving no clear lead. Their decisions range from articulating the assumption to favouring or adopting dual liability.
49. In my judgment, there is, in a modern context, little intrinsic sense in, or justification for, the assumption. "
"16. To look for a transfer of a contract of employment is, in a case such as this, no more than a distracting device; in the present case a misleading one. [The fitter's mate's] employment was not transferred. The inquiry should concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it. Who was entitled, and perhaps theoretically obliged, to give orders as to how the work should or should not be done? In my view, "entire and absolute control" is not, at least since the Mersey Docks case [Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Limited  AC 1], a necessary precondition of vicarious liability."
"55. 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. For these purposes, issues have naturally arisen as to when the relationship of employer and employee, as distinct from that of employer and independent contractor, exists; or as to the doctrine of the course of employment, which seeks to set the scope and limits of the employer's liability. Over the years, the tests which have been adopted to answer these issues have developed in a way which has gradually given precedence to function over form.
77. In my judgment, if consideration is given to the function and purposes of the doctrine of vicarious liability, then the possibility of dual responsibility provides a coherent solution to the problem of the borrowed employee. Both employers are using the employee for the purposes of their business. Both have a general responsibility to select their personnel with care and to encourage and control the careful execution of their employees' duties, and both fall within the practical policy of the law which looks in general to the employer to organise his affairs in such a way as to make it fair, just and convenient for him to bear the risk of his employees' negligence. I am here using the expression "employee" in the extended sense used in the authorities relating to the borrowed employee.
79. However, I am a little sceptical that the doctrine of dual vicarious liability is to be wholly equated with the question of control. Once, however, a doctrine of dual responsibility becomes possible, I am less clear that either the existence of sole right of control or the existence of something less than entire and absolute control necessarily either excludes or respectively invokes the doctrine. Even in the establishment of a formal employer/employee relationship, the right of control has not retained the critical significance it once did. I would prefer to say that I anticipate that subsequent cases may, in various factual circumstances, refine the circumstances in which dual vicarious liability may be imposed. I would hazard, however, the view that what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence. What has to be recalled is that the vicarious liability in question is one which involves no fault on the part of the employer. It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit."
"86. Thus, although the law now apparently entitles this court to make a finding of dual vicarious liability for the reasons given we decline to do so."
(3) Recent developments of the law at stage 2, the scope of employment
"27. My Lords, I have been greatly assisted by the luminous and illuminating judgments of the Canadian Supreme Court in Bazley v Curry 174 DLR (4th) 45 and Jacobi v Griffiths 174 DLR (4th) 71. Wherever such problems are considered in future in the common law these judgments will be the starting point. On the other hand, it is unnecessary to express views on the full range of policy considerations examined in those decisions.
28. Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes."
"37. An act of deliberate wrongdoing may not sit easily as a wrongful mode of doing an authorised act. But recognition should be given to the critical element in the observation, namely the necessary connection between the act and the employment. What has essentially to be considered is the connection, if any, between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered."
So too Lord Millett:
"70. What is critical is that attention should be directed to the closeness of the connection between the employee's duties and his wrongdoing and not to verbal formulae. This is the principle on which the Supreme Court of Canada recently decided the important cases of Bazley v Curry and Jacobi v Griffiths which provide many helpful insights into this branch of the law and from which I have derived much assistance."
It is thus firmly established that the appropriate test is the closeness of the connection between the work the employee had been employed to do and the acts of abuse that he committed.
"55. The classes of persons or institutions that are in this type of special relationship to another human being include schools, prisons, hospitals and even, in relation to their visitors, occupiers of land. They are liable if they themselves fail to perform the duty which they consequently owe. If they entrust the performance of that duty to an employee and that employee fails to perform the duty, they are still liable. The employee, because he has, through his obligations to his employers, adopted the same relationship towards and come under the same duties to the plaintiff, is also liable to the plaintiff for his own breach of duty. The liability of the employers is a vicarious liability because the actual breach of duty is that of the employee. The employee is a tortfeasor. The employers are liable for the employee's tortious act or omission because it is to him that the employers have entrusted the performance of their duty. The employers' liability to the plaintiff is also that of a tortfeasor. I use the word "entrusted" in preference to the word "delegated" which is commonly, but perhaps less accurately, used. Vicarious liability is sometimes described as a "strict" liability. The use of this term is misleading unless it is used just to explain that there has been no actual fault on the part of the employers. The liability of the employers derives from their voluntary assumption of the relationship towards the plaintiff and the duties that arise from that relationship and their choosing to entrust the performance of those duties to their servant. Where these conditions are satisfied, the motive of the employee and the fact that he is doing something expressly forbidden and is serving only his own ends does not negative the vicarious liability for his breach of the "delegated" duty."
Lord Millett said:
"82. In the present case the warden's duties provided him with the opportunity to commit indecent assaults on the boys for his own sexual gratification, but that in itself is not enough to make the school liable. The same would be true of the groundsman or the school porter. But there was far more to it than that. The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school's responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys."
"[Their Lordships] could easily have found the defendants in Lister were personally liable to compensate the claimants for the harm they suffered as a result of being sexually abused by Grain. Their Lordships could easily have reached this conclusion using the device of a non-delegable duty of care. They could have ruled that "the defendants owed the claimants a non-delegable duty of care to look after them; the defendants gave Grain the job of looking after the claimants; and Grain put the defendants in breach of the non-delegable duty of care that they owed the claimants when, by sexually abusing the claimants, he failed to look after the claimants properly. It is hard to understand why the House of Lords did not decide Lister in this way particularly as these were the very reasons why the House of Lords found there was a "sufficiently close connection" between the torts committed by Grain in the Lister case and what he was employed to do so as to make the defendants vicariously liable in respect of those torts."
I note that in the High Court of Australia in New South Wales v Lepore 195 ALR 412 Gummow and Hayne JJ say at para 208, "The analyses of Lord Hobhouse and Lord Millett have strong echoes of non-delegable duties." Gaudron J explained the Australian view at paras 123-125 as follows:
"Ordinarily, if there is a material increase in a risk associated with an enterprise involving the care of children that is a foreseeable risk and, thus, it is the personal duty of those who run that enterprise to take reasonable care to prevent that risk eventuating.
And if abuse occurs in circumstances in which an employee has seized an opportunity which could have been obviated by the use of reasonable care, the employer should be held directly liable.
A residential institution or authority that does not take reasonable steps to institute a system such that its employees do not come into personal contact with a child or other vulnerable person unless supervised or accompanied by another adult should be held directly liable in negligence if abuse occurs in a situation in which there is neither supervision nor an accompanying adult. Further, it seems almost certain that, on that basis, there would be no different result in factually similar cases from those arrived at in Bazley and Lister. So, too, on that basis, it would be a breach of a personal duty of care resulting in direct liability to allow an employee to share a bedroom with a child entrusted to his care, as was the case in Trotman [v North Yorkshire CC  LGR 584, CA]."
I cannot but wonder whether May LJ's test of asking in Viasystems who was entitled and perhaps theoretically obliged to give orders as to how the work should or should not be done, does not also engage questions of personal or non-delegable duty. According to Markesinis and Deakin's Tort Law, 6th ed., p.700, Lord Hobhouse's formulation is "certainly unorthodox" but, they add,
"there is much to be said for an analysis here which focuses on the defendant's overall responsibility for the care of the claimant."
These are all challenging observations beyond the scope of this judgment on this particular preliminary issue and we must await future developments. The bishop would undoubtedly be concerned to hear of a priest in his parish abusing little girls and may well have a duty to intervene and remove the priest from his parish to protect the victim but whether this concern for his parishioners, or even a general duty to be concerned about their welfare, can be transformed into a legal duty to take care when he has no reason to suspect harm is being or about to be suffered must remain a question for another day.
"57. Nor do I think that vicarious liability on the part of the Institute can be derived on the basis that brother-teachers were carrying out its purposes and acting in the capacity of members of it. True, no doubt, that teaching was the mission of the Institute, and that the brothers were therefore, when teaching at St William's or anywhere else, furthering that mission, having been sent there for that purpose. True, clearly, that they were identifiably present clothed with the status of members of the Institute and subject to its discipline. It does not, however, follow, that the Institute was engaged in the business of running the teaching at St William's. Applying the first stage of the test proposed by Lister, the Institute had not undertaken a duty of caring for the pupils at St William's and then delegated or entrusted it to the brother-teachers. Those brothers who taught at St William's were not doing so on behalf of the other members of the Institute."
" Underlying the cases holding employers vicariously liable for the unauthorised acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer's enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimisation). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.
 Applying these general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do (the risk created by the employer's enterprise) and the wrongful act. It must be possible to say that the employer significantly increased the risk of the harm by putting the employee in his or her position and requiring him to perform the assigned tasks. "
"60. The judgments contain a useful and impressive discussion of the social and economic reasons for having a principle of vicarious liability as part of the law of tort which extends to embrace acts of child abuse. But an exposition of the policy reasons for a rule (or even a description) is not the same as defining the criteria for its application. Legal rules have to have a greater degree of clarity and definition than is provided by simply explaining the reasons for the existence of the rule and the social need for it, instructive though that may be."
(4) The policy considerations which inform the doctrine of vicarious liability
"Since this case is not covered by previous authority, 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's case did not give any definitive guidance to lower courts."
(a) Control is one of the traditional explanations of vicarious liability but as Atiyah points out, "control cannot be treated either as a sufficient reason for always imposing liability or as a necessary reason without which there should never be vicarious liability." A parent is not liable for the torts of his children though he controls them; absence of control is no longer a serious obstacle to liability.
(b) Compensation/deep pockets: this explanation is necessary to ensure that innocent claimants have a solvent defendant against whom they may recover as employers are likely to be wealthier and/or carry insurance. That does not adequately explain why the employer should not be liable for the wrongful acts of his independent contractor.
(c) Deterrence: in one form the theory argues that since larger economic units are in the best position to reduce accidents through efficient organisation and discipline of staff, the law is justified in making them vicariously liable. If this was the reason for the rule, then one would expect that the employer would be able to escape from "vicarious" liability by proving he was without fault (as he would be able to do, for example, in Germany). The notion of deterrence does not work well in the case of sexual predators who are deterred neither by potential criminal sanctions nor by more efficient administration of a church's affairs, so the imposition of liability on the church whatever its rationale will bear little relationship to deterrence.
(d) Loss-spreading: the idea here is that by fixing liability on the employer, the burden of the injury will be spread among his customers and insurers. That does not help explain why the employer of a domestic servant is vicariously liable for his employee's torts when this cannot be spread through any customer base.
(e) Enterprise liability: one notion here is that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities. As suggested in Bazley, it is fair that the employer pays because the employer's enterprise created or exacerbated the risk that the claimant would suffer the injury she did. This of course does not explain why charitable organisations should nonetheless be vicariously responsible.
" A focus on policy is not to diminish the importance of legal principle. It is vital that the courts attempt to articulate general legal principles to lend certainty to the law and guide future applications. However, in areas of jurisprudence where changes have been occurring in response to policy considerations, the best route to enduring principle may well lie through policy. The law of vicarious liability is just such a domain."
At the other extreme is Lord Hobhouse of Woodborough whose view is expressed at  in Lister:
"I do not believe that it is appropriate to follow the lead given by the Supreme Court of Canada in Bazley The judgments contain a useful and impressive discussion of the social and economic reasons for having a principle of vicarious liability as part of the law of tort which extends to embrace acts of child abuse. But an exposition of the policy reasons for a rule (or even a description) is not the same as defining the criteria for its application. Legal rules have to have a greater degree of clarity and definition than is provided by simply explaining the reasons for the existence of the rule and the social need for it, instructive though that may be."
My own view is that one cannot understand how the law relating to vicarious liability has developed nor how, if at all, it should develop without being aware of the various strands of policy which have informed that development. On the other hand, a coherent development of the law should proceed incrementally in a principled way, not as an expedient reaction to the problem confronting the court. So I must see whether it is possible to articulate general legal principles which will allow the court to decide whether the bishop may be vicariously liable for the alleged torts of Father Baldwin.
(5) The search for principle
"Vicarious liability is the creation of many judges who have different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely or confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover it, will remain valid so far as it extends."
I am relieved he is not marking this essay.
Extending vicarious liability to relationships akin to employment
"The Labour market in Britain is presently undergoing significant structural change. The principal change is a rapid increase in new, flexible forms and patterns of work which depart radically from the standard employment relationship whereby an employee works regularly (that is, full-time) and consistently for his employer under a contract of employment. This new flexible, 'atypical' workforce consists largely of the self-employed, part-time workers, casual workers, 'temps,' homeworkers and those working on government training schemes. The rise of this workforce has been well documented by labour lawyers but so far it has largely escaped the attention of tort lawyers. Yet the emergence of a large 'atypical' workforce is an event of great importance for the law of tort.
The primary significance for tort lawyers lies in the fact that, owing to the flexibility, lack of continuity and irregularity of their work, many atypical workers are either unable or have great difficulty in establishing that they are employees employed under a contract of employment. If they are not employees then, presumably, they are outside the scope of the doctrine of vicarious liability. And if they are independent contractors then, as Lord Bridge recently stated, it is:
trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work.
Yet will the courts actually hold that these atypical workers are independent contractors for whose torts the employer is not liable? If they do, will that not undermine the social purposes, such as loss distribution, which have hitherto been furthered by the doctrine of vicarious liability? On the other hand, if the courts are to conclude that employers are liable for the torts of such workers how can they achieve this goal? Can the doctrine of vicarious liability be adapted in order to encompass this new workforce or will the courts have to create new forms of primary liability?"
" the Board is firmly of the view that the policy on which vicarious liability is founded is not a vague notion of justice between man and man. It has clear limits. This perspective was well expressed in Bazley v Curry The principle of vicarious liability is not infinitely extendable."
On the other hand, it is not a static concept and has adjusted over the centuries to provide just solutions to the challenges of changing times. And times are still a-changing as McKendrick's article demonstrates. We need to adapt to the current demands. Viasystems has gone a long way to acknowledge that, for the purposes of establishing vicarious liability, the tortfeasor does not have to be an old-fashioned employee. It will be recalled that the issue there was whether "employers" could be held vicariously liable for the torts of an "employee" bound in contract to one of them but "loaned" by him to the other for the purpose of carrying out a particular piece of work. The actual contract of employment was treated as no more than an irrelevant distraction. Function triumphed over form. Despite the tortfeasor not being an employee of the second defendant, the second defendant was vicariously liable for his negligence. For Street on Torts 12th ed. p. 592, this was "a radical step" and he fears what will happen "in the wrong hands." In my hands I am prepared to say that, even if the court did not address the exact question we have to resolve is a relationship akin to employment enough? this decision of the Court of Appeal, accepted as it has been in Hawley v Luminar, has extended the conventional boundaries and will, I believe, come to be seen as something of a William Ellis moment where, perhaps unwittingly, their Lordships picked up the ball and ran with it thereby creating a whole new ballgame vicarious liability even if there is strictly no employer/employee relationship. This appeal now presents us with the problem of laying down the rules for this novel game vicarious liability in cases akin to employment.
The close connection test
The hallmarks of the relationship of employer-employee
"(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master; (ii) he agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master; (iii) the other provisions of the contract are consistent with its being a contract of service."
"Control includes the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done. All these aspects of control must be considered in deciding whether the right exists in a sufficient degree to make one party the master and the other his servant."
Later at p. 524 he commented on Lord Thankerton's "four indicia" of a contract of service said in Short v J. and W. Henderson Ltd (1946) 62 TLR 427, 429 to be:
"(a) The master's power of selection of his servant; (b) the payment of wages or other remuneration; (c) the master's right to control the method of doing the work; and (d) the master's right of suspension or dismissal."
McKenna J said:
"It seems to me that (a) and (d) are chiefly relevant in determining whether there is a contract of any kind between the supposed master and servant, and that they are of little use in determining whether the contract is one of service. The same is true of (b) unless one distinguishes between different methods of payment, payment by results tending to prove independence and payment by time the relation of master and servant."
" in the earlier cases it seems to have been suggested that the most important test, if not the all-important test, was the extent of the control exercised by the employer over the servant. If one goes back to some of the cases in the first decade of this century, one sees that that was regarded almost as the conclusive test. But it is also clear that as one watches the development of the law in the first sixty years of this century and particularly the development of the law in the last fifteen or twenty years in this field, the emphasis has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor. In some cases it may still be the decisive factor, but it wrong to say that in every case it is the decisive factor. It is now, as I venture to think, no more than a factor albeit a very important one."
Roskill J's test was this at p. 1760:
"Finally it has been more recently suggested that the matter can be determined by reference to what in modern parlance was called economic reality. All these are matters which have to be borne in mind. To my mind, no single one is decisive. One has to look at the totality of the evidence, at the totality of the facts found and then apply them to the language of the statute. One cannot do better than echo the words of Somerville LJ in Cassidy v Ministry of Health  2 KB 343, 352:
"one perhaps cannot get much beyond this: 'was his contract a contract of service within the meaning which an ordinary person would give to the words?'"
"I find that the contract between the two parties was more consistent with a contract for service than a contract of service. From the totality of the evidence, Mr Evans-Hemming was not employed as part of the business of the plaintiffs but rather as a contract for service and his work, although done for the business, is not integrated into it but is only accessory to it."
In the latter he said:
" the test of being a servant does not rest nowadays on submission to orders. It depends on whether the person is part and parcel of the organisation."
Those passages have been criticised, for example by Professor Atiyah and by the Privy Council in Lee Tin Sang v Chung Chi-Keung  2 AC 374. Nonetheless there are echoes of that test in the judgment of Rix L.J. in Viasystems.
"What then is the standard to apply? This has proved to be a most elusive question and despite a plethora of authorities the courts have not been able to devise a single test that will conclusively point to the distinction in all cases.
Their Lordships agree with the Court of Appeal when they said that the matter had never been better put than by Cooke J. in Market Investigations Ltd v Minister of Social Security  2 Q.B. 173, 184-185:
"The fundamental test to be applied is this: 'is the person who has engaged himself to perform these services performing them as a person in business on his own account?'
If the answer to that question is 'yes', then the contract is a contract for services. If the answer is 'no', then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task."
"In earlier cases a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on the part of the master or superior. In the more complex conditions of modern industry, more complicated tests have to be applied. It has been suggested that a four-fold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of tools; (3) chance of profit; (4) risk of loss. Control is not always in itself conclusive."
He went on to say that
"it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior."
How to weld policy considerations into a useful test for vicarious liability
"(1) Control by the 'employer' of the 'employee'. Traditionally this has meant asking whether the employer can control not only what is done but also how it is done. This makes little sense and the variant of asking whether the employer has the legal right to control is merely circular. Rather this factor should look at the degree of managerial control which is exercised over the activity and this may depend on how far a person is integrated into the organisation of the enterprise. At the one end of the spectrum a contractor will merely be asked to achieve an end result, or more ambiguously the specification of that end result may be so detailed as to amount to detailed control over how that result is to be achieved. At the other end of the spectrum, it is the person who is actually controlled in every detail of how things are to be done. Another way to look at the control test is to examine the degree to which the 'employee' is accountable to the employer; in other words to what extent is he subject to the managerial procedures of the employer in relation to such matters as quality of work, performance, productivity etc?
(2) Control by the contractor of himself. This is not about Mr Newall who took no orders from anybody [the Mersey Docks case] but is rather an element of the entrepreneur test and involves looking at how the contractor arranges his work, his use of assets, his payment etc.
(3) The organisation test (in the first sense of how central the activity is to the enterprise): This involves the question, how far the activity is a central part of the employer's business from the point of view of the objectives of that business. This element flows from the need to establish who it is that is engaging in the activity and the more relevant the activity is to the fundamental objectives of the business the more appropriate it is to apply the risk to that business.
(4) The integration test (i.e. the organisation test in the second sense of whether the activity is integrated into the organisational structure of the enterprise). This also looks at the traditional test of whether the function is being provided for the business or by the business and is also a part of the entrepreneur test for it asks whether the activity is part of the enterprise's organisation or of some other organisation. A service may be absolutely essential to the business or wholly peripheral to it, but if it is being provided by what is in effect a separate business it would be appropriate to apply the risk to the enterprise. It is a factor of both who is engaging in the activity and also who stands to gain or lose from it.
(5) Is the person in business on his own account (the entrepreneur test)? This is not really a separate test as it is intimately involved in the other four, but it needs to be highlighted so that the burden of proof is right. For the purpose of vicarious liability a person should not be regarded as an independent contractor simply because according to the technical requirements of employment law he is not an employee. Rather it needs to be established that he is actually behaving as an entrepreneur and is taking the appropriate risks and has the possibility of resulting profits. Thus even if a person's activity is peripheral to the enterprise and even if he is not for managerial purposes regarded as part of the organisation, a person could still be regarded as an 'employee' if it is clear that in relation to that business he is not acting as an entrepreneur. Agency workers would be an example."
"There is no direct control in the sense of the bishop checking what a priest does every single day, but there is a level of control in the sense that if certain things don't happen then action could be taken "
Moreover, as prescribed by the canon law, and as acknowledged by Monsignor Read, presbyters (priests) are bound by special obligation to show reverence and obedience to their own ordinary, with the emphasis added by me. Monsignor Read said in his cross-examination (see  above):
" he (the bishop) would not give detailed instructions as how they were to exercise the role of parish priest to them as individuals but rather issue norms through the Ad Clerum to the clergy as a whole, as particular policy or things of that kind. If it came to the bishop's attention that a priest was in breach of ecclesiastical law, he would have the right and duty to take action."
Abusing a little girl is a most gross breach of ecclesiastical law and if it came to the bishop's knowledge, he would be bound to dismiss the priest from his office as parish priest even if he could not deprive him of the sacrament of holy orders. Here May LJ's test in Viasystems quoted at  above comes into play. He asked:
"Who was entitled, and perhaps theoretically obliged, to give orders as to how the work should or should not be done?"
Although it might never have crossed his mind to contemplate the unthinkable, I do not doubt that Bishop Worlock could have told Father Baldwin, "Go out and care for the souls of your parishioners but on no account are you ever to sexually abuse any one of them".
"His [the bishop's] role is not one of giving directions as to how that office is to be carried out. Those requirements are set out in the universal and particular canon law applying to the office concerned."
Nevertheless residual control still vests in the bishop. Ultimately there is little difference between the bishop's control over the priest and the health trust's control over the surgeon: neither is told how to do the job but both can be told how not to do it.
"A diocese is a portion of the people of God, which is entrusted to a bishop to be nurtured by him, with the co-operation of the presbyterium, in such a way that, remaining close to its pastor and gathered by him through the Gospel and the Eucharist in the Holy Spirit, it constitutes a particular Church. In this Church, the one, holy, Catholic and Apostolic Church of Christ truly exists and functions."
Translating that into secular language, there is an organisation called the Roman Catholic Church with the Pope in the head office, with its "regional offices" with their appointed bishops and with "local branches", the parishes with their appointed priests. This looks like a business and operates like a business. Its objective is to spread the word of God. The priest has a central role in meeting that target. Ministering, as he does, to the souls of the faithful, can be seen to be the very life blood of the Church, vital to its existence. "The more relevant the activity is to the fundamental objectives of the business, the more appropriate it is to apply the risk to the business", says Kidner and I agree.
" what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence."
"They (the bishops) should also, either individually for their own diocese or better still by several acting in accord in common territory, see to it that rules are drawn up by which due provision is made for the decent support of those who hold or have held any office in the serving of God."
That smacks a bit more like being paid a wage. But it certainly does not resonate with being an entrepreneur. The very fact that the priest is required by Canon Law to reside in the parochial house close to his church is rather like the employee making use of the employer's tools of trade.
"With sedulous care and an outpouring of love, the parish priest must help the sick in his own parish, indeed above all those close to death, solicitously supporting them with the Sacraments and commending their souls to God."
To perform this sacred duty he jumps on his battered old bicycle and pedals furiously down the hill to attend his ailing parishioner. Alas he does so negligently, fails to observe another of his flock on a controlled pedestrian crossing. She is knocked down and suffers injury. The priest was clearly in the course of doing what he was appointed to do. There is no problem about applying stage 2 of the test. But he has taken a vow of poverty. He is not himself insured. But the parish is. Are we really having to conclude that his bishop and/or the diocesan trust are not vicariously liable because he is not employed or in a relationship akin to employment? Are we to say he is simply an office holder personally responsible for the manner in which he conducts his office. I think not.
Lord Justice Tomlinson:
"On a secular level, the Church interacts with members of the diocesan community in a host of ways. It carries on a variety of religious, educational and social activities. It makes contracts with employees. It transports parishioners. It sponsors charitable events. It purchases and sells goods and property."
"The parishes in which Bennett worked were geographically isolates, impacting on the opportunities for, and extent and frequency of, the sexual assaults and contributing to their remaining unchecked for many years. The communities were entirely Roman Catholic and the devoutly religious inhabitants placed the Church at the centre of their daily lives. There were few other authority figures; the communities lacked municipal government, diverse business activities, secular organisations, police, courts or any other form of community leadership, leaving that role entirely to the parish priest. The only schools were denominational, and as such were influenced by the priest, who served as the only local representative of the distant school board."
It was in this context that McLachlin CJ described the Bishop as having conferred upon Bennett an "enormous degree of power relative to his victims". She went on to remark that that power imbalance was intensified in St George's Diocese due to the factors which I have just set out.
"31. Bennett had enormous stature because of his position as parish priest, both to the boys and to their parents. The plaintiffs perceived him as a "god" quite logically given his centrality in the community and the disparity in lifestyles between himself and his parishioners. As the school principal, Kerry Dwyer, testified, "It was like having a celebrity in the community that you had to treat properly . . . [T]here were incidents where I found people believed that the priest could turn you into a goat." Or, as one victim stated, when he asked his father if he should sleep over at Bennett's house as Bennett had requested, "my dad said of course, he's the priest". While Bennett had a particularly forceful personality, the root of his power over his victims lay in his role as a priest, conferred by the bishop. The trial judge summed it up eloquently, at para. 28: "The awe in which Father Bennett was held by the community at large contributed to his ability to control his victims and thus to satisfy a prodigious appetite for constant sexual gratification."
32. In summary, the evidence overwhelmingly satisfied the tests affirmed in Bazley, Jacobi and K.L.B. The relationship between the diocesan enterprise and Bennett was sufficiently close. The enterprise substantially enhanced the risk which led to the wrongs the plaintiff-respondents suffered. It provided Bennett with great power in relation to vulnerable victims and with the opportunity to abuse that power. A strong and direct connection is established between the conduct of the enterprise and the wrongs done to the plaintiff-respondents. The majority of the Court of Appeal erred in failing to apply the right test. Had it performed the appropriate analysis, it would have found the Roman Catholic Episcopal Corporation of St George's vicariously liable for Father Bennett's assaults on the plaintiff-respondents."
"Experience shows that in the case of boarding schools, prisons, nursing homes, old peoples' homes, geriatric wards and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust."
"55. 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. For these purposes, issues have naturally arisen as to when the relationship of employer and employee, as distinct from that of employer and independent contractor, exists; or as to the doctrine of the course of employment, which seeks to set the scope and limits of the employer's liability. Over the years, the tests which have been adopted to answer these issues have developed in a way which has gradually given precedence to function over form."
Returning to the theme at paragraph 79 Rix LJ said this:-
"What has to be recalled is that the vicarious liability in question is one which involves no fault on the part of the employer. It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit."
"65. Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission on the part of the employer; an employer who is not personally at fault is made legally answerable for the fault of his employee. It is best understood as a loss-distribution device: (see Cane's edition of Atiyah's Accidents, Compensation and the Law 6th ed (1999), p 85 and the articles cited by Atiyah in his monograph on Vicarious Liability in the Law of Torts, at p 24. The theoretical underpinning of the doctrine is unclear. Glanville Williams wrote ("Vicarious Liability and the Master's of Indemnity" (1957) 20 MLR 220, 231):
"Vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely or confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover it, will remain valid so far as it extends".
Fleming observed (The Law of Torts, 9th ed (1998), p 410) that the doctrine cannot parade as a deduction from legalistic premises. He indicated that it should be frankly recognised as having its basis in a combination of policy considerations, and continued:
"Most important of these is the belief that a person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise . . ."
Atiyah, Vicarious Liability in the Law of Torts wrote to the same effect. He suggested, at p 171:
"The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on".
These passages are not to be read as confining the doctrine o cases where the employer is carrying on business for profit. They are based on the more general idea that a person who employs another for his own ends inevitably creates a risk that the employee will commit a legal wrong. If the employer's objectives cannot be achieved without a serious risk of the employee committing the kind of wrong which he has in fact committed, the employer ought to be liable. The fact that his employment gave the employee the opportunity to commit the wrong is not enough to make the employer liable. He is liable only if the risk is one which experience shows is inherent in the nature of the business."
"82. Regardless of general policy considerations, however, it seems to me to be important to look at the nature of the employer in this particular case. For the purposes of this action (but not otherwise), it is accepted that Father Clonan was an employee of the Archdiocese. The Archdiocese is a Christian organisation doing its best to follow the precepts of its Founder (see, in particular, Mark 10.13-16). Like many other religions, it has a special concern for the vulnerable and the oppressed. That concern may not be quite the same as the legal obligation to care or assumption of responsibility for care that was emphasised by Lord Steyn or Lord Hobhouse in Lister but it seems to me to be analogous.
83. In the case of the Roman Catholic Church, this situation is further emphasised by its claim to be the authoritative source of Christian values. For centuries the Church has encouraged lay persons to look up to (and indeed revere) their priests. The Church clothes them in clerical garb and bestows on them their title Father, a title which Father Clonan was happy to use. It is difficult to think of a role nearer to that of a parent than that of a priest. In this circumstance the absence of any formal legal responsibility is almost beside the point."
At paragraph 88 Longmore LJ observed:-
"88. . . . When one [looks at the global picture], one sees that this is a case of Father Clonan inviting the claimant to the Presbytery and there abusing him. That displays a strong connection with the Church by a priest whose power and ability to exercise intimacy was conferred by virtue of his ordination by the Church."
Lord Justice Davis:
i) First, where a preliminary issue is directed there normally is an agreed statement of the primary (assumed) facts or an agreement that the facts alleged in the Particulars of Claim are assumed to be true or something like that. But here there was not even agreement as to whether Father Baldwin was as the Particulars of Claim assert the priest responsible for the parish of Sacred Heart Church, Waterlooville at the times in question (as opposed to being the diocesan Vocations Director based in Reading, as the second defendants say). At all events, the pleaded allegation is that he was. It is also pleaded that Father Baldwin was invited to visit the home and did so in the course of his duties as priest; and that JGE, while a resident of the home, was a parishioner of that church. It is further pleaded that the second defendants in the premises owed JGE a duty of care at all relevant times.
ii) Second, the reality is in cases of this kind that, in terms of facts, there can be a significant degree of overlap between the first stage and the second stage. As put by Hughes LJ in the Institute of the Brothers of the Christian Schools case "it is a judgment upon a synthesis of the two [stages] which is required."
iii) It thus may strongly be queried, with hindsight, whether this was an appropriate occasion for a preliminary issue to be directed in this particular case.
Lord Justice Ward: