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RECASTING VICARIOUS LIABILITY

Published online by Cambridge University Press:  27 November 2012

Phillip Morgan
Phillip Morgan*
Affiliation:
Lecturer, University of York.
*
Address for correspondence: York Law School, Freboys Lane, University of York, Heslington East, York YO10 5GD. Email: [email protected].
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The Cambridge Law Journal , Volume 71 , Issue 3 , November 2012 , pp. 615 - 650
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Copyright © Cambridge Law Journal and Contributors 2012

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References

1 European Commission-DG EAC, Volunteering in the European Union, Final Report (London 2011), 11Google Scholar; also EYV 2011: Focus EU, Figures on Volunteering in the EU, (http://europa.eu/press_room/pdf/eyv2011_figures_en.pdf), (last accessed 21 February 2012).

2 According to the Department for Communities and Local Government's 2010–11 Citizenship Survey (London, 2011) in 2010–11, 39% of adults reported that they volunteered formally at least once a year, and 25% reported that they volunteered formally at least once a month. 55% of adults reported that they volunteered informally at least once a year, and 29% of adults said that they volunteered informally at least once a month. The survey defined formal volunteering as “Giving unpaid help through groups, clubs or organisations to benefit other people or the environment”, and defined informal volunteering as “Giving unpaid help as an individual to people who are not relatives”.

3 Rochester, C., Paine, A., and Howlett, S., Volunteering and Society in the 21st Century (Basingstoke 2010), 3, 222–226Google Scholar.

4 Cabinet Office, Building the Big Society (London 2010), para 1, 4. David Cameron, Prime Minister's Speech on the Big Society, 14 February 2011, (available: http://www.number10.gov.uk/news/pms-speech-on-big-society/) (last accessed 21 February 2012).

5 These contracts are often profit making, although most bodies within the voluntary sector will apply this profit to funding their other, non-profit making activities.

6 See Law Reform Commission, Civil Liability of Good Samaritans and Volunteers, (LRC 93 -2009; Dublin 2009), pp. 78 [3.88], 109 [4.12], which considers that vicarious liability may act as a form of protection for volunteers, preventing them from being required to resort to personal resources.

7 See J. Murphy, in A. Dugdale and M. Jones (eds.), Clerk and Lindsell on Torts, 20th ed. (London 2010), (hereafter “Clerk & Lindsell”), §6–78, p. 397. This is not true agency, see below.

8 Partnership Act 1890, s. 10.

9 Cane, P., Atiyah's Accidents, Compensation and the Law, 7th ed., (Cambridge 2006), 230Google Scholar. The victim is only compensated for their injuries once.

10 E.g. Mattis v Pollock [2003] EWCA Civ 887, [2003] 1 W.L.R. 2158.

11 Clerk & Lindsell, §6–57, p. 386.

12 R. Stevens, “Non-Delegable Duties and Vicarious Liability” in J. W. Neyers, E. Chamberlain and S. G. A. Pitel (eds.), Emerging Issues in Tort Law (Oxford 2007) (hereafter “Emerging Issues”), ch. 13, p. 337; Clerk & Lindsell, §6–68, p. 392, based on Morris v C. W. Martin & Sons Ltd [1966] 1 Q.B. 716. See Morgan, P., “Vicarious Liability for Employee Theft: Muddling Vicarious Liability for Conversion with Non-Delegable Duties” [2011] L.M.C.L.Q. 172Google Scholar.

13 Rogers, W. V. H., Winfield and Jolowicz on Tort, 18th ed. (London, 2010), 945Google Scholar.

14 Williams, G., “Vicarious Liability and the Master's Indemnity” (1957) 20 M.L.R. 220, 231Google Scholar.

15 JGE v The English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocesan Trust, [2011] EWHC 2871 (QB), [2012] 1 All E.R. 723, at [10].

16 E.g. Hughes L.J. in Various Claimants v Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106 at [35].

17 Brodie, D., “Enterprise Liability: justifying vicarious liability” (2007) 27 O.J.L.S. 493Google Scholar, 496 sees Lister v Hesley Hall [2001] UKHL 22, [2002] 1 A.C. 215 as “utterly consistent” with enterprise liability; Brodie, D., Enterprise Liability and the Common Law (Cambridge 2010), p. 23Google Scholar (hereafter Enterprise Liability). Cf. Giliker, P., “Making the Right Connection: Vicarious liability and institutional responsibility” [2009] T.L.J. 76Google Scholar.

18 Hughes L.J. in Various Claimants at [35].

19 R Stevens, Torts and Rights, (Oxford 2007), (hereafter “Torts and Rights”), p. 258. Stevens does not consider that it is a rationale either, since one cannot add up different policy explanations which do not fully justify the doctrine to justify the doctrine, (p. 259).

20 Note discussion in Giliker, P, Vicarious Liability in Tort, A Comparative Perspective, (Cambridge 2010), 237Google Scholar (hereafter “Vicarious Liability in Tort”).

21 For a convincing rebuttal of enterprise liability in its economic variant see R. Stevens, Torts and Rights, pp. 258–259.

22 D. Brodie, Enterprise Liability, p. 11.

23 Ibid.

24 J. Steele, Tort Law, Text, Cases, and Materials, 2nd ed., (Oxford 2010), 574.

25 Ibid., p. 574.

26 E.g. through the Third Parties (Rights against Insurers) Act 2010.

27 For example through passing costs through “liability insurance and higher prices”, L. Klar, in C. Sappideen and P. Vines (eds), Fleming's The Law of Torts, 10th ed., (Sydney 2011), 438, [§9.10].

28 J. Steele, Tort Law, pp. 574–575.

29 See also D. Brodie, Enterprise Liability, pp. 507–8; further R. Stevens, in Emerging Issues, p. 361.

30 Fleming's The Law of Torts, p. 438, [§9.10].

31 R. Stevens, Torts and Rights, p. 259. Stevens also notes that some of the traditional justifications thrown into the mix are contradictory, and “point in different directions” (p. 259).

32 The conclusion of this article does require the discussion or adoption of Stevens' approach to the master's tort theory.

33 P. Atiyah, Vicarious Liability in the Law of Torts (London 1967), pp. 15–16.

34 Ibid., p. 16, although refers to “identification” rather than group identification, Williams, G., “Vicarious Liability and the Master's Indemnity” (1957) 20 M.L.R. 231Google Scholar, 234, refers to “group unity”.

35 Note R. Stevens, Torts and Rights, p. 258, criticising a control based approach on the fact that parents are not vicariously liable for their children. Note that parental liability for children is however a common European rule, see P. Giliker, Vicarious Liability in Tort, pp. 196–226.

36 Clerk and Lindsell, §6–28, p. 369.

37 [2001] UKHL 22, [2002] 1 A.C. 215. As Giliker notes four different tests for close connection were given in Lister, P. Giliker, “Making the right connection: Vicarious liability and institutional responsibility” [2009] T.L.J. 35, 39, fn 30. See also P. Giliker, Vicarious Liability in Tort, pp. 166–167.

38 [2002] UKHL 48, [2003] 2 A.C. 366.

39 Para. [23].

40 As in Lister itself.

41 [2010] EWCA Civ 256, [2010] 1 W.L.R. 1441.

42 The issue of whether a Bishop can be vicariously liable for a Diocesan Priest was subsequently determined in the case of JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938.

43 [1999] 2 S.C.R. 534.

44 Morgan, P., “Distorting Vicarious Liability” (2011) 74 M.L.R. 932CrossRefGoogle Scholar.

45 Ibid.

46 Ibid., pp. 940–944.

47 [2011] EWHC 2871 (QB), [2012] 1 All E.R. 723. These criticisms appear to have been accepted by the Court of Appeal, [2012] EWCA Civ 938, at [120]–[121], per Davis L.J.

48 D & F Estates Ltd v Church Commissioners [1989] A.C. 177, 208. C.f. Winfield and Jolowicz on Tort, pp. 948–9, suggesting that this distinction may need to be adjusted given changes in employment practices.

49 Clerk and Lindsell, §6–11, pp. 360–1.

50 For support for this proposition see S. Deakin, A. Johnston, and B. Markesinis, Markesinis and Deakin's Tort Law, 6th ed., (Oxford 2008), 698, (hereafter “Markesinis and Deakin”). Note also R. Kidner, “Vicarious liability: for whom should the ‘employer’ be liable?” (1995) 15 Legal Studies 47.

51 Neyers, J. W., “A Theory of Vicarious Liability” (2005–2006) 43 Alta. L. Rev. 287Google Scholar.

52 Ibid., p. 301.

53 Ibid.

54 Ibid., p. 303.

55 Ibid., p. 304.

56 Police Act 1996, s. 88.

57 Neyers, op. cit., p. 314. The theory also does not explain the requirement of the employee to indemnify the employer, although it is submitted that the current case law on employee indemnification is incorrect.

58 [2006] EWCA Civ 18, [2006] I.R.L.R. 817.

59 [2005] EWCA Civ 1151, [2006] Q.B. 510.

60 [2012] EWCA Civ 938. At the time of the abuse in JGE the applicable code was the 1917 Code of Canon Law. The presently applicable code is the 1983 Code of Canon Law, which followed (belatedly) the Second Vatican Council. To that extent, it may be open to distinguish JGE in future cases involving relationships governed by the 1983 Code. However, any opportunities to distinguish in this context are limited, and unlikely to succeed.

61 Quinn v Ministry of Defence [1998] P.I.Q.R. P387 (CA).

62 E.g. The Ministry of Defence v Charles Peter Timothy Radclyffe [2009] EWCA Civ 635; see also A (A Child) v Ministry of Defence and Another [2004] EWCA Civ 641, [2005] Q.B. 183, per Lord Phillips M.R., at [10], where military hospitals are staffed by military medical staff, or civilian staff employed by the MoD, the MoD would be vicariously liable. Only the civilian staff would have contracts of employment.

63 See Williams, G., “Vicarious Liability and the Master's Indemnity” (1957) 20 M.L.R. 220Google Scholar.

64 P. Cane, Atiyah's Accidents, Compensation and the Law, 7th ed, (Cambridge, 2006), 232.

65 A phenomena alluded to by the Irish Law Reform Commission, see Civil Liability of Good Samaritans and Volunteers (LRC 93 -2009; Dublin 2009), pp. 78 [§3.88], 109 [§4.12].

66 Weir, T., An Introduction to Tort Law, 2nd ed., (Oxford 2006), 106Google Scholar.

67 P. Giliker, Vicarious Liability in Tort, p. 102.

68 P. Watts and F. Reynolds (eds.), Bowstead and Reynolds on Agency, 19th ed. (London 2010), §8–187.

69 [1973] A.C. 127.

70 P. 135.

71 E.g. Ormrod v Crossville [1953] 1 W.L.R. 1120.

72 See Clerk and Lindsell, §6–74, pp. 365–6.

73 Ibid., §6–79, pp. 397–8.

74 P Giliker, Vicarious Liability in Tort, p. 110.

75 Ibid.

76 See Winfield and Jolowicz, p. 977.

77 [1986] Q.B. 240.

78 Per Park J.: “he can exercise considerable control over the conduct of a mounted subscriber in the chase. I can find no reason why the master should not be held vicariously liable for trespass committed by such a person.”

79 Note dicta in Heatons Transport (St Helens) Ltd v Transport and General Workers Union [1973] A.C. 15, 99, per Lord Wilberforce, applied in Thomas and Others v National Union of Mineworkers (South Wales Area) and Others [1986] Ch. 20, 67, per Scott J.

80 [1953] 2 Lloyd's Rep 613.

81 “[T]he cox was the agent of the defendants. The eight was the property of the school governors, and it was used by them for their purposes, that is to say for the training of boys, and also for the purposes of being entered in races on the river in regattas or otherwise; and no doubt the objects of that were to give an incentive to the boys to do their best at rowing and also, with a hope of winning, to enhance the prestige of the school and perhaps induce parents to send their sons there.” per H.H. Judge A Ralph Thomas, at 618.

82 [2001] I.C.R. 271, (EAT); Lindsay J, the President, being in the minority. Further applied in De Clare Johnson v MYA Consulting Ltd Employment Appeal Tribunal, 31 August 2007 (Unreported), concerning vicarious liability of a company for the acts of a non-employee in causing the constructive dismissal of an employee. Reference also made in Cheltenham B.C. v Laird [2009] EWHC 1253 (QB); [2009] I.R.L.R. 621.

83 The minority accepted vicarious liability for agents, but did not consider it to be present on the facts of the case.

84 [1985] 1 W.L.R. 1150.

85 In the context of the regulatory regime then in force, they were held not to be agents. The regulatory regime applicable to foster parents has now changed significantly from that applicable at the time of the injury in S v Walsall.

86 Winfield and Jolowicz, p. 976; P. Giliker, Vicarious Liability in Tort, p. 116, considers it an “Odd remnant” which “adds little to our understanding of the principles of vicarious liability”.

87 See S v Attorney General [2003] NZCA 149. Kirby J. (dissent) in Hollis v Vabu [2001] HCA 44 also relied on the concept of agency; criticised by McCarthy, L., “Vicarious Liability in the Agency Context” (2004) 4(2) Q.U.T.L.J.J. 268Google Scholar.

88 P. Giliker, Vicarious Liability in Tort, p. 109.

89 See for instance McKendrick, E., “Vicarious Liability and Independent Contractors – A Re-examination” (1990) 53 M.L.R. 770Google Scholar.

90 [2005] EWCA Civ 1151, [2006] Q.B. 510.

91 Para. [15].

92 [1955] 2 Q.B. 437, 444.

93 Para. [52].

94 Para. [78]–[79], at [79]: “the right of control has not retained the critical significance it once did”.

95 Para. [82], obiter since whichever of the two approaches adopted the Court was not persuaded that on the facts of Luminar that it made any difference.

96 [2008] EWCA Civ 1257, [2009] Q.B. 725.

97 Para. [58], per Stanley Burnton L.J. “Supervision is not control. An architect or a clerk of the works may supervise the work of a contractor's employees, but he does not exercise control for the purposes of vicarious liability. … But the right to supervise does not, without more, carry with it the entitlement to instruct how to do the work, particularly where the employees are not unskilled labourers but skilled welders.”

98 Denham v Midland Employers' Mutual Assurance Ltd [1955] 2 Q.B. 437, 443 per Denning L.J.

99 [2010] EWCA Civ 1106. This case it is submitted casts some doubt on the status based risk approach contained in Maga, see Op. cit. P. Morgan, “Distorting Vicarious Liability”.

100 Para. [1].

101 The De La Salle Institute, hereafter ‘the Institute’. The brother teachers were identifiable by their names and dress.

102 Under contracts of employment.

103 Para. [9].

104 Para. [54], [78].

105 http://www.lasalle.org/index.php?option=com_content&view=article&id=96&Itemid=55&lang=en (last visited 21 February 2012).

106 Para. [24].

107 With whom Tomlinson L.J. agreed.

108 Para. [38].

109 Para. [40]–[41], given that partnerships are a form of unincorporated association.

110 Para. [76].

111 Para. [83].

112 Which normally decides what standard a person has to attain before a qualification is conferred, Para. [84].

113 Oddly Maga was not referred to in this case. This does not however make the case per incuriam since the facts are sufficiently different for the two to be distinguished, further in so far as Various Claimants deals with the required connection of the relationship to the tort, it deals with a different relationship and it is submitted that it is possible to discern from the case that different tests of connection to the tort may be applicable to different relationships (for example unincorporated associations).

114 Para. [87].

115 Para. [53].

116 Para. [48], [56].

117 Para. [53].

118 Para. [85].

119 Used here in a broad sense.

120 Para. [42].

121 Para. [42].

122 Para. [85].

123 Para. [65].

124 Para. [47].

125 Para. [57].

126 An approach to vicarious liability based on an economic view of enterprise liability cannot account for liability in such a context given the charitable activities of the Institute, nor would it account for imposing vicarious liability on range of unincorporated associations.

127 Scottish Law Commission, Unincorporated Associations, Scot Law Com No 217, (Edinburgh 2009), pp. 2 [1.4], 7 [2.2]; Stewart, N., Campbell, N., and Baughan, S., The Law of Unincorporated Associations (Oxford 2011), p. 4Google Scholar [§1.09].

128 Stewart et al., p. 7 [§2.1].

129 [2008] EWCA Crim 1970, [2009] P.T.S.R. 119, at [11].

130 [1982] 1 W.L.R. 522, 525.

131 Ibid.

132 Stewart et al., p. 12 [§2.01].

133 [2010] EWCA Civ 256, [2010] 1 W.L.R. 1441.

134 Ibid.

135 The word elevate is used to connote an increase in “status”.

136 P. Morgan, “Distorting Vicarious Liability”.

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 for the purposes of Section 82(1) of the Sex Discrimination Act 1975.

140 The Court of Appeal in JGE held that they were not employees, at [30] per Ward L.J., at [131], per Davis L.J.

141 Para. [20].

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.

146 Para. [41].

147 Para. [41].

148 Whilst the argument in the case was centred on whether the relationship was “akin to employment”, refreshingly MacDuff J. moved away from simply discussing whether or not a Priest is an employee. Disappointingly, whilst MacDuff J. acknowledged that other categories of vicarious liability may exist ([6]), he did not discuss, or engage with them, or attempt to overtly rationalise them into a single category.

149 Para. [34], [43].

150 Particularly given the reliance on authorities on the second close connection test to inform the relationship close connection test by MacDuff J. in JGE.

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].

153 Para. [42].

154 P. Morgan, “Revising Vicarious Liability – A Commercial Perspective” [2012] L.M.C.L.Q. 175, 179. Cited in JGE, at [56], per Ward L.J., and [117], per Davis L.J.

155 Para. [61], per Ward L.J.

156 MacDuff J. recognises this implicitly, at Para. [35], “he was appointed in order to do their work”, and at [36], “the man appointed and authorised by them to act on their behalf.”

157 Para. [73], per Ward L.J.

158 Ibid.

159 Para. [79]–[80]. Davis L.J. (the other member of the majority), ignored the financial considerations, and looked at control, connection, and objectives.

160 See Williams, G., “Liability for Independent Contractors” (1956) C.L.J. 180Google Scholar; for non-delegable duties in a child care context see P. Case, Compensating Child Abuse in England and Wales (Cambridge 2007), 106–107.

161 J. Murphy, “Juridical Foundations of Common Law Non-Delegable Duties” in J. Neyers, E. Chamberlain and S. G. A. Pitel, Emerging Issues in Tort Law (Oxford 2007), ch. 14, p. 371.

162 See R. Stevens in Emerging Issues, p. 363.

163 To give an example, with foster parents the legislation governing their relationships with both authorities and the foster children differs from jurisdiction to jurisdiction. Such a non-delegable duty was rejected by the Canadian Supreme Court in MB v British Columbia 2003 SCC 53, [2003] 2 S.C.R. 477 and KLB v British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, whilst non-delegable duties were present in the relevant legislation the Court stated there was no general non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents. A non-delegable duty approach is taken in Louisiana, Vonner v State of Louisiana, 273 So.2d 252, LA 1973, and Miller v Martin, Department of Social Services, State of Louisiana and Methodist Home for Children, 838 So.2d 761, LA 2003. A non-delegable duty was also adopted in Bartels v The County of Westchester, 76 A.D.2d 517, NY 1980.

164 Williams, G., “Liability for Independent Contractors” (1956) C.L.J. 180CrossRefGoogle Scholar, 193. Cf. R. Stevens, Emerging Issues, p. 368: “Non-delegable duties are not the cuckoos in the nest.”

165 With the ordinary activities of a child, such as play, its level of discretion and the fact that it cannot be said to have a role vis-à-vis the parents means that vicarious liability is not present. If however the child is carrying out a task or work for its parents this is a different issue, and the discretion in the assigned role will need to be analysed.

166 As with the current separate categories where a different test was used in Various Claimants.

167 See for instance Morren v Swinton and Pendlebury BC [1965] 1 W.L.R. 576, 582, per Lord Parker C.J. Markesinis and Deakin, p. 668, state in the context of the employee/independent contractor divide that with the increase in specialist skills of employees the ability of an unskilled employer to control the work has diminished. Whilst critical of it they state that it may be preserved in the form of a “right to control their work if he possessed the necessary skill”. I argue that this is incorrect, an employer may control the work whether or not he possesses the necessary skill.

168 E.g. whether to use GPS within sight of land or visual fixing, (amongst many others). Note Zuijs v Wirth Brothers Pty. Ltd (1955) 93 C.L.R. 561, 571, per Dixon C.J., Williams, Webb and Taylor JJ. “The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it.”

169 Note The Pilotage Act 1987, s. 16.

170 Op. cit., Atiyah, Vicarious Liability in the Law of Torts, p. 16.

171 The scheme which provides an account of all categories of vicarious liability does not itself rest on a rejection of the enterprise liability approach (in either form) to vicarious liability.

172 E.g. the purposeful activity in Lister was looking after the children; in Mattis v Pollock [2003] EWCA Civ 887; [2003] 1 W.L.R. 2158, the purposeful activity was controlling access and maintaining security.

173 There was a high level of agreement on the part of the Canon Law experts, and MacDuff J. considered it uncontroversial that (at [29]): “There is effectively no control over priests once appointed. Within the bounds of canon law, a priest is free to conduct his ministry as he sees fit, with little or no interference from the bishop, whose role is advisory not supervisory. A bishop has a duty of vigilance but is not in a position to make requirements or give directions. … The bishop had no power of dismissal. Dismissal from office would have to be effected through the church in Rome”. Further “The bishop must exercise Episcopal vigilance. There is clearly some element of control within this, although there is nothing in the way of penalty or enforcement; the purpose is to oversee and advise. The bishop may only redeploy the priest in another parish if the latter consents.” The findings on Canon Law contradicted those made in Doe v Bennett, this was recognised but not dealt with by MacDuff J. in JGE; it concerned the same Code and system of Canon Law.

174 The relationship in JGE was under the 1917 Code of Canon Law. Such relationships are now governed by the 1983 Code of Canon Law. For reduction to the lay state see Can. 211, (Can. 290, 1983 Code), some effects remain since the ordination is not itself invalidated.

175 Para. [126], [134]. per Davis L.J.

176 Para. [134].

177 The Church recognises a sacred hierarchy of clerics, “in which some are subordinated to others” (Can. 108 § 2 of the 1917 Code, the equivalent provision in the 1983 Code does not state this (Can. 266)). Under Can. 127 (see Can. 273 in the 1983 Code), clerics are obliged to show reverence and obedience to their own Ordinary (i.e. a Priest reverence/obedience to his Bishop). An Ordinary cannot transfer without cause an unwilling irremovable Priest without special facilities from the Apostolic See (note Can. 2163, there is no equivalent provision in the 1983 Code. Under 1983 Code: Can. 1748–1752 there is no need to resort to the Apostolic See). However, under the 1917 Code an Ordinary can remove a removable Priest provided the procedure in Can. 2163–2167 is followed (see Can. 1748–1752, 1983 Code). Additionally, where there is cause an Ordinary can remove even an irremovable priest from his Parish (Can. 2147, procedure at Can. 2147–2156; removable pastors: Can. 2157–2161); (Can. 1740–1747, 1983 Code). An Ordinary could also immediately deprive a Priest of his parish in certain circumstances, e.g. concubinious Priests (Can. 2176, 2177; no direct equivalent in the 1983 Code, although Can. 1395 provides for suspension).

178 E.g. Can. 2380, clerics or religious carrying on trade/business in breach of Can. 142 “are to be coerced by the Ordinary with penalties” (now see Can. 1392, 1983 Code).

179 E.g. under Can. 2302, a command or a prohibition about living in a certain place or a relocation to house of penance, (No direct equivalent in 1983 Code).

180 See Can. 2186 for suspension. Penal provisions on suspension also exist in both Codes.

181 For example the review carried out by Lord Nolan available at http://www.cathcom.org/mysharedaccounts/cumberlege/finalnolan1.htm, (last accessed 21st February 2012), e.g. at Para 3.5.16.

182 E.g. to display a holy exterior, and interior life (Can. 124; see analogous Can. 276, 1983 Code), prohibition on marriage/obligation of chastity/celibacy (Can. 132; Can. 277, 1983 Code), to avoid profane novelties and pseudo-science (Can. 129; Can. 279 §1, 1983 Code), prohibition on suretyship without permission of the Ordinary (Can. 137; Can. 285, 1983 Code), no gambling, hunting, and restrictions on entering taverns, (Can. 138; no such provisions under 1983 Code, but see Can. 285), obligation to avoid shows, dances, and spectacles, (Can 140; no equivalent in 1983 Code), prohibition on exercising business or trade (Can. 142; Can. 286, 1983 Code now permits this with permission).

183 Can. 136; (Can. 284, 1983 Code).

184 I.e. A Priest cannot refuse to use the new translation of the Missal into English and instead use the older translation.

185 In the case of an Extra-Ordinary Minister of Holy Communion, a lay volunteer, who distributes Holy Communion to the patient, the day to day control over the lay volunteer would in the vast majority of cases be too weak for vicarious liability to be present. Note also Ward L.J.'s example in JGE at [83].

186 In the United States vicarious liability for franchisees is regularly pleaded, and there can be in certain circumstances vicarious liability for a franchisee. This vicarious liability is based on a control based notion of “agency” or “apparent agency”. See King, J. H. Jr. “Limiting the Vicarious Liability of Franchisors for the Torts of Their Franchisees” (2005) 62 Washington & Lee L. Rev. 417Google Scholar.

187 McKendrick, E., “Vicarious Liability and Independent Contractors – A Re-examination” (1990) 53 M.L.R. 770Google Scholar, 784. See also R. Kidner, “Vicarious liability: for whom should the ‘employer’ be liable?” (1995) 15 Legal Studies 47, 49.

188 See United States Restatement (Third) of Agency, 2006, which makes provision for the vicarious liability of volunteers: § 7.07 Employee Acting Within Scope Of Employment, § 7.07 “(3) For purposes of this section, (a) an employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work, and (b) the fact that work is performed gratuitously does not relieve a principal of liability.” Note, J. D. Kahn, “Organizations' Liability for the Torts of Volunteers” (1985) 133(6) U. Pa. L. Rev 1433. See also South Australia Volunteers Protection Act 2001, s. 5(1).

189 Giliker, Vicarious Liability in Tort, p. 254