Lloyd's Maritime and Commercial Law Quarterly
REVISING VICARIOUS LIABILITY: A COMMERCIAL PERSPECTIVE
Phillip Morgan*
JGE v Portsmouth Roman Catholic Diocesan Trust
JGE v The English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocesan Trust
1 heralds a significant change to the law of vicarious liability. At first glance JGE, as a first instance decision concerning litigation arising out of alleged sexual abuse committed by a Roman Catholic priest, is of limited relevance to commercial lawyers. Nothing could be further from the truth. In the field of vicarious liability, where cases concerning abuse litigation have led, cases involving commercial concerns have soon followed.2 If JGE is followed, it will precipitate a number of changes to vicarious liability as applied in commercial contexts, and will require changes to commercial practice to accommodate these.
1. Vicarious liability
Vicarious liability is a system of strict liability through which one entity A is made liable for the torts of another, B, even though A is not at fault. Assuming B to have committed the tort, the first stage in establishing vicarious liability is to determine whether A stands in a sufficient relationship with B to be potentially vicariously liable for B. The second stage is to examine the connection of B’s tort to B’s relationship with A. It is only if there is sufficient connection between the tort and the relationship that A is vicariously liable for the tort. JGE deals with the first stage.
It is considered trite law that, while employers may be vicariously liable for the torts of their employees, they are not vicariously liable for the torts of their independent contractors.3 The doctrine enshrines an early twentieth-century notion of employment and industry. However, this will now need to be reappraised for at least some “independent contractors” if JGE is followed. There are, however, categories of relationship which
1. [2011] EWHC 2871 (QB); [2012] 1 All ER 723 (“JGE”). The first defendant did not participate in this preliminary issue.
2. Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215 (abuse by school boarding house warden) was soon followed by Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48; [2003] 2 AC 366; [2003] 1 Lloyd’s Rep 65 (commercial fraud). The recent abuse case of Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256; [2010] 1 WLR 1441 (see P Morgan, “Distorting Vicarious Liability” (2011) 74 MLR 932), which was followed seven months later in a commercial context by Brink’s Global Services Inc v Igrox Ltd [2010] EWCA Civ 1207; [2011] IRLR 343 (see P Morgan, “Vicarious Liability for Employee Theft: Muddling Vicarious Liability for Conversion with Non-Delegable Duties” [2011] LMCLQ 172).
3. D & F Estates Ltd v Church Comrs for England [1989] 1 AC 177, 208, per Lord Bridge.
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY
176