Master Dagnall has today handed down judgment in JXH v The Vicar, PCC And Churchwardens Of The Parish Church of Holcombe Rogus (2023), in which he considered whether the connection between a parish vicar's role within a Parochial Church Council and his sexual assaults of a young adult man were sufficiently closely connected to give rise to vicarious liability.
In this article Paul Donnelly, Samara Hussain and Dalbinda Gill, who acted for the Defendant (which in paragraph 128 of his judgment Master Dagnall considered should be named as “The Parochial Church Council of the Parish of Holcombe Rogus” – ("the PCC")), discuss the judgment and its implications – particularly the increasing focus in such cases on the defendant's business activity, the authorised activities of the tortfeasor and the need for more than a mere remote connection between the two for vicarious liability to apply.
A link to the judgment can be found here.
Background
The Claimant ("JXH") and his family moved to Crediton when he was a child and attended the Crediton Church. Vickery House was the curate at the Crediton Church from 1974-1975. He led a youth group known as “the Young Communicants” which the Claimant joined while being still in his early teenage years. House was subsequently an ordained minister of the Church of England. Master Dagnall found that he was a man of considerable charisma whom others, especially if younger or less forceful than him, would be inclined to treat with respect.
House was appointed and became the vicar of the parish of Holcombe Rogus ("the Parish") in 1976 and moved with his wife to live in the Rectory in the Parish. However, they also retained a family house some 30 miles away in Hittesleigh Mill.
House was instrumental in organising and for there to be made available, a cottage at which lived, three young men (initially “SGZ”, “SPZ” and then also the Claimant), all three had known House from the Crediton Church. Master Dagnall found that the occupiers of the Cottage regarded themselves as being something of a Monastic Community ("the Community"). House attended there from time to time and had a role in practice as to what happened there.
As was accepted by the Defendant, House sexually assaulted the Claimant in about 1979 at the Hittesleigh House, and at some point in 1980-1981 at the Wellington public swimming-pool located some miles away from the Parish.
Vicarious Liability
The Court considered the application of recent judicial guidance provided by the Supreme Court in the case of The Trustees of the Barry Congregation of Jehovah's Witnesses v BXB (2023) and also the Court of Appeal in MXX v A Secondary School (2023).
Vicarious liability is established using the 2 stage test:
- the relationship between the Defendant and the tortfeaser (House) is one of employment or sufficiently akin to employment. Here the Defendant accepted that the relationship between the PCC and House as its incumbent vicar at the material time was sufficient to satisfy this stage 1 test.
- whether the wrongful conduct (i.e. the sexual assaults) of the tortfeaser (House) is so closely connected with acts that the tortfeaser was authorised to do that it can fairly and properly be regarded as done by the tortfeaser while acting in the course of the quasi-employment.
This was a case which centred on that 2nd limb of the test – which Master Dagnall defined as the Essential Question.
One must then conduct a back check to stand back and consider the policy of enterprise liability or risk that may be said to underpin vicarious liability to consider whether that policy should result in there being vicarious liability in that case.
Application of Vicarious Liability
Master Dagnall found that each of the two sexual assaults were not so closely connected with the authorised activities of House in his quasi-employment by the Defendant PCC as Vicar of the Parish to be fairly and properly regarded as having been done in the course of that quasi-employment, and therefore the stage 2 test was not met.
Master Dagnall emphasised (as did the Supreme Court in BXB and the Court of Appeal MXX) that the "but for" causation is not enough to establish the stage 2 connection – i.e. the fact that Master Dagnall found that House was only able to establish the Community in the Parish because he was the incumbent vicar was not sufficient to satisfy stage 2 of the test.
In reaching this decision, Master Dagnall highlighted the following factors:
- The Community had no existence as such within the Church of England and no connection with the PCC or the Parish apart from through House and its location;
- The Claimant was brought in by House from outside the Parish and had no special roles or positions within the Parish or it's Church;
- The Community was set up and operated so that it was exclusive to the young men, visitors and House rather than being “opened-up” to the Parish and the members of the church;
- The two assaults took place away from and in locations which were well outside the Parish, and not on any Parish premises. Although location is said not to be determinative the two assaults did not take place during any occasion which could be seen ostensibly to be a “church or Parish occasion” or a “church or Parish activity;
- House was not metaphorically wearing “his uniform as” Vicar of the Parish in the contexts of the occasions of these two assaults. He was, in Master Dagnall's view, wearing a “uniform” as effective director of the Community.
- Grooming was of limited relevance here because:
- The “grooming” began prior to the coming of either the Claimant or House to the Parish (and hence before the Stage 1 relationship between the PCC and House was in existence).
- The sexual assaults were unprovoked, uninvited and unconsented- to serious assaults, however they were not situations where a process of “grooming” led the victim (adult or child) to allow the wrongdoer to sexually assault them. Rather the Claimant immediately objected to each assault.
- Age was not a factor as an adult can be “groomed” and assaulted in certain contexts, just as a child can be and although the Claimant’s history rendered him vulnerable, there was no connection between authorised activities as there might be in other cases, such as looking after a child Claimant
- House’s dominance over the Claimant so that he could persuade the Claimant to come to and stay at the Hittesleigh House and come to the Swimming-Pool were derived from a mixture of (to a limited extent) their historic personal acquaintance (which predated House becoming Vicar of the Parish, and went back to his role at Crediton) and (but much more so) House’s role as director of the Community, rather than from House’s being Vicar of the Parish;
- House’s position, as effective director of the Community, was sufficiently different and separate from his role as Vicar of the Parish.
At paragraph 212 Master Dagnall then conducted the policy back-check and considered that it was not:
"fair and just to impose vicarious liability upon the Defendant. This was not a context of activities for the benefit of the Parish or the Parish church, or the promoting of the Christian faith, gospel and mission within the Parish, but a separate and distinct context relating to the Community (and, to a lesser extent, an historic personal acquaintance). Any benefit to the Parish to the Parish church from the Community was no more than incidental; the Community was, essentially, a separate personal project on the part of House"
Conclusion
This is a judgment which builds on BXB and MXX and highlights the shift back to basic principles. It demonstrates through particularly the back-check that the policy consideration behind vicarious liability is very much one of “enterprise liability” and not purely finding funded recourse to those who may deserve compensation. That can also be seen from the shortening by Lord Reed (initially in Cox v Ministry of Justice (2016)) of Lord Phillips five incidences of vicarious liability in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools [2012] to the three incidences which are enterprise based, i.e
a. that the tort had been committed while acting on behalf of the employer
b. and as part of the employer’s business and
c. that the employer had thereby created the risk of the tort
Master Dagnall concluded the Claimant cannot sue this particular Defendant and it was not fair and just to impose vicarious liability upon the Defendant. The context of activities were not for the benefit of the Parish or the Parish church, or the promoting of the Christian faith, gospel and mission within the Parish, but a separate and distinct context relating to the Community (and, to a lesser extent, a historic personal acquaintance). Any benefit to the Parish or the Parish church from the Community was no more than incidental; the Community was, essentially, a separate personal project on the part of House.
This judgment explores in great detail the authorised activities of a parish vicar/incumbent in so far as the same relates to the business activities of a PCC, which are of course largely administrative and organisational. As the judgment illustrates, a PCC is a creature of statute and incumbents/vicars are holders of ecclesiastical office licensed by the diocesan bishop. Not everything they do, even within the parish, can be said to be properly connected to parish-related activity so as to make the PCC vicariously liable for torts conducted in the context of that activity, even if that activity has a religious context. Master Dagnall builds on BXB and MXX to really highlight the need for more than a merely remote connection to authorised activities, as is demonstrated by the fact that the pastoral care and religious instruction given by House to the Community was not enough here to create the necessary stage 2 connection, despite pastoral care and religious instruction being authorised activities when delivered in a Parish related context.
These principles apply equally outside of a religious context. As the recent reported cases on stage 2 of the vicarious liability test show, it is necessary to drill right down into the authorised activities of the stage 1 relationship. For vicarious liability to apply a Claimant must demonstrate a real and meaningful connection between authorised activities undertaken by the tortfeasor in the context of the Defendant's business activities and the risk (and fact) of the tort so as to trigger the enterprise liability/risk policy basis for the doctrine of vicarious liability.
For more information, please contact Paul Donnelly, Samara Hussain and Dalbinda Gill.
