Recasting Vicarious Liability

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Morgan, Phillip David James (2012)
  • References (23)
    23 references, page 1 of 3

    137 2004 SCC 17, [2004] 1 S.C.R. 436.

    138 See P. Morgan, “Distorting Vicarious Liability”. Although referring to the issue of status in establishing close connection to the tort, the arguments are equally valid in this context. In relying upon status elevation the High Court in JGE cited South African authority (Police v Rabie (1986) 1 S.A. 117) which sits oddly alongside co-ordinate English case law (P. Morgan, “Distorting Vicarious Liability”, p. 943). The reliance on status in JGE by the High Court may be a by-product of the misleading approach taken in the case to the level of control exercisable by a Bishop over a Priest of his Diocese (see below). These criticisms appear to have been accepted by Davis L.J. in JGE, at [120]-[121], who cited the author's previous work (at [117]).

    139 Moore v President of the Methodist Conference [2011] EWCA Civ 1581, Methodist Minister was an employee for the purposes of Section 230 of the Employment Rights Act 1996. New Testament Church of God v Stewart [2007] EWCA Civ 1004, [2008] I.C.R. 282, New Testament Church of God Pastor was an employee for the purposes of Section 230 of the Employment Rights Act 1996. Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, [2006] 2 A.C. 28, Ordained Minister of the Church of Scotland working as an Associate Minister was an employee

    140 fTohrethCeopuurtrpoofsAespopfeaSlecintioJnG8E2(h1e)ldofththaet StheexyDwisecrreimn ointaetmiopnloAycetes1,9a7t5.[30] per Ward L.J., at [131],

    142 Para. [21].

    143 Para. [27]. “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.” ([27]). The relationship was therefore considered “akin to employment” ([27]). [Editor's note: For the official view of the Catholic Church, see Pontifical Council for Legislative Texts, “Nota Esplicativa” (2004): http://www.vatican.va/roman_curia/ pontifical_councils/intrptxt/documents/rc_pc_intrptxt_doc_20040212_vescovo-diocesano_it.html (last visited 19 September 2012.)]

    144 The litigation instead being fought on the sufficiency or not of the connection between the tort and the relationship: Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, [2010] 1 W.L.R. 1441, at [36], (Diocesan Priest/Non-Catholic member of the local community). Whilst other cases have assumed that there may be vicarious liability for Priests, these cases have not looked at the relationship between Bishop/Priest, but rather in these cases the Priest was also a teacher and the principal was the Board of Governors, e.g. C v D, SBA [2006] EWHC 166 (QB) at [111] (Priest Headmaster/Pupil, Board of Governors “unquestionably” vicariously liable), Raggett v Society of Jesus Trust 1929 for Roman Catholic Purposes [2010] EWCA Civ 1002; [2010] C.P. Rep. 45 (Priest Schoolteacher/Pupil).

    145 However, given that the test of connection to the tort test in unincorporated association cases would appear to be different, and more difficult to establish, it is understandable why counsel for the claimant would not wish to frame their case around this pocket of vicarious liability.

    151 Donaldson v McNiven [1952] 2 All E.R. 691, 692, per Lord Goddard C.J., “Some people have thought that parents ought to be responsible for the torts of their children, but they are not.” See P. Giliker, Vicarious Liability in Tort, pp. 196-226 for a comparative survey of parental liability.

    152 Para. [42].

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