Andrea Ward and Denise Brosnan
consider the potential implications for local authorities following
the recent Court of Appeal decision in JGE v Trustees of the
Portsmouth Roman Catholic Diocesan Trust (2012) and ask: will
there be an extension of the doctrine of vicarious liability to the
relationship between local authorities and foster carers?
The doctrine of vicarious liability establishes that an employer
is liable for the tortious acts or omissions of its employees. It
is a strict liability principle, in other words, the employer
automatically becomes responsible for the employee's tort
without the need for actual fault on the part of the employer. The
courts have been extending the range of relationships giving rise
to potential vicarious liability.
In November 2011 Mr Justice MacDuff determined as a preliminary
issue in the High Court that a Roman Catholic diocese could be
vicariously liable for the wrongful acts of one of its priests
given the nature and closeness of the relationship between them.
The diocese appealed, denying that the priest was in the service of
the diocese and that he was at all times following his vocation and
calling as a priest. It was denied that the diocese was vicariously
liable for the acts or omissions of priests in the diocese:
specifically, a priest is the holder of an office, not an employee
of the diocese.
Court of Appeal Findings
On appeal, the first instance decision was upheld. In
particular, the Court of Appeal found that the relationship between
a bishop and a Roman Catholic parish priest was so close in
character to that of employer and employee to make it just and fair
to hold a diocese vicariously liable for the wrongful acts of one
of his priests. In determining whether vicarious liability can be
involved in a case of this type, there is a two-stage test. The
first stage involves the relationship between the Diocesan Trust
(to be equated with the then diocesan bishop) and the parish
priest. The second stage involves the connection between that
"employment" relationship and the alleged acts of sexual
abuse on the part of the parish priest. In this case, the parish
priest did not match every facet of being an employee but the
result of each of these tests led to the same conclusion that he
was more like an employee than an independent contractor. The Court
of Appeal was split and did not find it an easy case to decide so
an appeal seems probable.
Claims in relation to abuse by foster carers are brought in
negligence. If the doctrine of vicarious liability is extended to
the relationship between local authorities and foster carers then
the local authority becomes responsible for the foster carers'
wrongful acts without the necessity for actual fault on the part of
the local authority. In historic abuse claims an application under
section 33 Limitation Act 1980 (for the court to exercise its
discretion to allow the claim to proceed out of time) will still be
difficult for the claimant – see A v. Hoare (2008)
UKHL. However, the chances of succeeding in a section 33
application increases where the doctrine of vicarious liability
applies because of the "employment" relationship which
will be deemed to exist between local authorities and foster
Foster parents are not treated as employees of local
authorities but they are very heavily regulated and therefore it
could be argued in future that the degree of control exercised by
the local authority is akin to that of an employment contract.
However, the Court of Appeal cited the Canadian Supreme Court
decision in John Doe v Bennett (2004) which found that the
incidents of control in the relationship of bishop and priest far
exceed those characterising the relationship between foster carers
and the government (in our case, local authorities).
One of the arguments was that the doctrine of vicarious
liability should be kept within strict limits because it can cast
liability on a person who may not necessarily himself be at any
fault at all. However, the court referred to the significant
extensions over the years.
In our view, there is unlikely to be an immediate extension of
the doctrine to affect claims involving foster carers but we do
expect there to be developments which may widen its scope - careful
analysis of the case law will continue to be required.
Andrea Ward and Denise Brosnan
have significant expertise in defending volume, historical abuse
claims for local authorities and insurers.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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