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 carers.
  • 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.

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