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JGE V.

THE TRUSTEES OF THE PORTSMOUTH ROMAN CATHOLIC DIOCESAN TRUST


United Kingdom
Title:
JGE v. The Trustees of the Portsmouth Roman Catholic Diocesan Trust
Court:
Court of Appeal (Civil Division)
Date:
12 July 2012

Case Summary:

Background:
The claimant alleged that in 1970 when she was 6 years old she was sexually abused and
raped on multiple occasions by a Roman Catholic priest while residing in a childrens home
run by an order of nuns. The present case was brought by the claimant who was now an adult
against the Roman Catholic Diocese of Portsmouth (the Church) for the acts of the priest. The
defendant Church argued that it could not be held liable for the acts of the priest as he was not
an employee of the Church, rather he was merely an office holder following his vocation and
calling as a priest and thus not subject to the level of control required to demonstrate an
employment relationship giving rise to vicarious liability.

Issue and resolution:

Vicarious liability for sexual abuse of children. The Court held that, even though the priest was
not an employee of the Church, his relationship with the Church was sufficiently akin to one of
employment that it was fair and just to hold the Church vicariously liable for damages as a
result of his conduct.

Court reasoning:

The Court conducted an extensive analysis of the law of vicarious liability and the policy
considerations that inform the doctrine to conclude that vicarious liability should apply in the
absence of formal employment when that relationship is sufficiently akin to one of employment
and it is fair and just to impose vicarious liability. The court held that this test was met in the
case of the priest performing his duties within the context of the Roman Catholic Church. The
court based its holding on an analysis of several factors, including the level of control and
supervision exercised by the Church and the role of the priest within the organisational
structure of the Church.

Impact:
Partly relying on the decision in the present case, the UK Supreme Court upheld a similar
claim against the Brothers of Christian Schools in The Catholic Welfare Society v. the Institute
of the Brothers of the Christian Schools [2012] UKSC 56.

Cassidy v Ministry of Health [1951]

Facts
Mr Cassidy went to hospital for a routine operation on his hand, but came away with stiff
fingers because of the negligence of one of the doctors. He attempted to sue the Ministry of
Health in its capacity as employer. The Ministry argued it could not be held responsible and
had no vicarious liability, relying partly on Collins v Hertfordshire[1] where it had been
suggested that a surgeon was not the 'servant' of his employee.

Judgment
The Court of Appeal held that the doctor was indeed a servant of the hospital and the Ministry
was vicariously liable, because the doctor was integrated into the health organisation. Denning
LJ said,[2]

Stevenson Jordan & Harrison Ltd v Macdonald & Evans [1952]

Fact:
A management engineer wrote a book using information he gained while working for his firm,
first as an employee, and then an executive officer. Some was from the text of lectures that he
wrote and delivered, and some was material he acquired while on an assignment. He died
before publication. The Copyright Act 1911 section 5(1) said that the author of a work is the
first owner of a copyright. But if the author was under a contract of employment and the work
was in the course of employment the employer would own the copyright in absence of another
agreement. His old firm claimed the copyright.

Judgment:
Denning LJ held the engineer simply put together his know how of the profession and had not
betrayed any mystery of the firms business or disclosed trade secrets. His contract was mixed,
partly of and partly for services outside the contract. His lecture work was not covered by the
Act, but the material acquired while on assignment did fall within the Act. The publishers
should be restrained from printing that section, which was severable.
Denning LJ said the following in his judgment.[1]
I fully agree with all that my Lord has said on all the issues in this case. It raises the
troublesome question of the distinction between a contract of service and a contract for
services. The test usually applied is whether the employer has the right to control the
manner of doing the work. Thus in Collins v Herts County Council, Mr. Justice Hilbery said:
The distinction between a contract for services and a contract of service can be summarized
in this way: In the one case the master can order or require what is to be done, while in the
other case he can not only order or require what is to be done but how it shall be done.
[...]
It is often easy to recognise a contract of service when you see it, but difficult to say where
the difference lies. A ships master, a chauffeur, and a reporter on the staff of a newspaper
are all employed under a contract of service; but a ships pilot, a taxi-man, and a
newspaper contributor are employed under a contract for services. One feature which
seems to me to run through the instances is that, under a contract of service, a man is
employed as part of the business and his work is done as an integral part of the business;
whereas under a contract for services his work, although done for the business, is not
integrated into it but is only accessory to it.

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