JGE v The English Province of Our Lady of Charity & Anor

Vicarious liability is not confined to a contract of employment. At the first stage of the inquiry, the court asks whether the relationship between the tortfeasor and defendant is sufficiently close for vicarious liability potentially to arise. It considers the relationship’s nature and purpose, the authority and resources conferred, the appearance of representation, and the degree of control, supervision and support.

No single factor, including control, is determinative. The two stages of the inquiry overlap and require an overall synthesis. A diocesan bishop could therefore be vicariously liable for a priest’s alleged torts where the bishop appointed and empowered the priest to conduct the Church’s ministry, notwithstanding the absence of wages, a formal contract, supervision or a power of dismissal.

The claimant alleged that, while resident in a children’s home, she was sexually abused and raped by a Roman Catholic priest. The second defendant was treated for the litigation as standing in the place of the diocesan bishop.

The court determined the preliminary issue whether the second defendant could in law be vicariously liable for the priest’s alleged torts. Only the first stage of the vicarious liability inquiry was for decision: whether the relationship between bishop and priest was one to which vicarious liability might attach. Whether the alleged acts were sufficiently connected with that relationship remained for trial.

The priest had no contract of employment, wages or conventional managerial supervision, and the bishop lacked a power of dismissal. The central question was whether the relationship was nevertheless sufficiently close to found vicarious liability.

1. The preliminary issue was determined in favour of the claimant. The second defendant could in law be vicariously liable for the priest’s alleged torts. Whether the alleged wrongdoing was sufficiently connected with the priest’s ministry remained for the trial judge.

2. Vicarious liability involves two fact-sensitive inquiries. The first concerns whether the relationship between the defendant and tortfeasor is capable of attracting the doctrine. The second concerns whether the tort is sufficiently connected with the employment, appointment or other relationship. The ultimate judgment requires a synthesis of both stages, which may overlap.

3. The first stage is governed by the nature and closeness of the relationship, not exclusively by the existence of a contract of employment or a relationship labelled as akin to employment. The court adopted the approach in Doe v Bennett [2004] ISCR 436. It was consistent with the reasoning in Viasystems, Lister and MAGA.

4. The relevant circumstances include the nature and purpose of the relationship; whether tools, equipment, uniform or premises were supplied; the authority or power conferred to act for the defendant; and whether the tortfeasor could reasonably be perceived as representing the defendant. Control, supervision, advice and support are relevant but are neither exhaustive nor determinative. The doctrine must remain within clear limits, and the ultimate question is whether liability is just and fair after close scrutiny of both relationships.

5. The bishop appointed the priest to perform the Church’s ministry and conferred its authority, premises, pulpit and clerical robes upon him. The priest was sent into the community as the Church’s representative and placed in a position of substantial power and trust. That empowerment materially increased the risk that the conferred authority and trust might be abused.

6. The absence of a formal contract, wages, close supervision and a power of dismissal did not outweigh those features. The appointment and authorisation were the major considerations. The relationship was therefore capable of founding vicarious liability, whether or not it was described as akin to employment.

not stated in the judgment.