Abstract
PERSONAL INJURY
The claimant (JGE) claimed damages for personal injury loss and damage following sexual abuse she suffered as a child by a priest (B). At the time of the abuse, JGE was resident at the Firs Children's Home in Hampshire between May 1970 and May 1972. JGE's claim was against the English Province of our Lady of Charity (C), first defendant and the Trustees of the Portsmouth Roman Catholic Diocesan Trust (D), second defendant.
The Firs Children's Home was operated by C and the preliminary issue to be determined was whether D was vicariously liable for the wrongful acts of B, who by the time of the trial, had died. D argued that B was not an employee and that vicarious liability could not attach to the relationship between them.
Mr Justice McDuff revisited the doctrine of vicarious liability and the two-stage test was as follows:
‘An inquiry into the relationship between A and B; whether it was a relationship to which the principles of vicarious liability might attach; Whether the act or omission of B was within the scope of the employment.’
The court was only concerned with the first test and the second test was for the trial Judge. Mr Justice McDuff reviewed the way in which vicarious liability had developed in these cases and he reviewed other previous cases relating to this issue. However, all the previous cases had focused on the second stage of the test and employment, therefore, was not an issue. With respect to the first stage of the test, most of the previous cases were concerned with whether the employee of a sub-contractor was deemed to be an employee. There was a ‘close connection test’ at both stages.
Expert evidence was obtained from canon law specialists and the following matters were agreed:
‘There were no terms and conditions for priests within the Diocese of Portsmouth, nor any contract. The appointment was subject to canon law; There was no control over priests once appointed. Only Rome could dismiss the priest; There was not fixed remuneration and the priest took whatever he needed from the collection plate. The priest was considered to be an office holder by the Revenue; The bishop was able to oversee and advise, but could not effect any enforcement or penalty, and could not move the priest without the priest's consent; Matters such as duties, financial support and time away from the parish were left to the general provisions of canon law. They were not akin to secular employment; A bishop and a priest would not regard their relationship as subject to the civil courts.’
MacDuff referred to the Canadian case of Doe v Bennett and others (2004) ISCR 436 in which the Supreme Court of Canada found that a bishop was vicariously liable for the actions of a priest who had sexually abused boys within his parish. Further, there was extensive control and right of removal from office. It was held that the relationship was akin to employment and that it was just to impose liability on the bishop.
It was held that each case would be fact specific and it would be necessary to look at the extent to which there was control, supervision, advice and support but although these issues were relevant, they were not determinative. Whether D was responsible for the acts of B would be determined by (a) the connection and relationship between the parties and (b) the connection between the tortious act and the purpose of the relationship.
The preliminary issue in relation to liability was determined in JGE's favour.
CRIMINAL LAW
[2011] UKSC 59
The respondent, G had been convicted of murder. G had been involved in a gunfight with X. However, one of X's gunshots killed a passer-by (P). Under the doctrine of transferred malice X could be found guilty of murder. The jury were directed by the Judge that it was open to them to find that G and X had been in a joint venture to commit affray by being involved in a gunfight and that G could be guilty of murder if he had foreseen that X might have shot and killed a passer-by. The Court of Appeal found that there had not been a joint venture and there was no basis to convict G.
The issue for the Supreme Court was whether G's conviction could be upheld on the basis of:
‘Parasitic accessory liability based on a joint enterprise to commit affray; G's having been an accessory to X's attempt to kill him and this sharing his liability for P's murder.’
The court held that if ‘G had aided, abetted, counselled or procured X to shoot at him, he was guilty of aiding and abetting the attempted murder of himself and by virtue of transferred malice was guilty of P's murder.’
The Judge directed the jury that they could convict only if both protagonists had formed an agreement to have a gunfight in which each would attempt to kill the other, which meant that each protagonist was party to the other's attempt to kill him. It was open to the jury to consider G's liability for P's murder on the basis that one of the effective causes of her death had been his shooting at X, but the case had not been put to the jury on that basis and the Crown's appeal was allowed.
CORONIAL LAW
[2011] EWHC 2890 (Admin)
C, the claimant, sought the remedy of judicial review of the defendant coroner's handling of the inquest touching upon her sister E's death. E had died in a road traffic accident when her bicycle was in a collision with a heavy goods vehicle driven by L. L was due to face a criminal trial for driving with defective vision and the inquest was fixed to consider E's death.
C sought to adjourn the inquest and made four requests to the coroner, three of which were within four days of the date the inquest was fixed. Her reasons for seeking the adjournment were:
‘Her chosen barrister was unavailable on the given date; L's criminal trial was yet to take place; The one day time estimate for the inquest was wrong; Additional disclosure was required; The calling of additional witnesses should be considered; The coroner should consider sitting with a jury; There had been several accidents in the same area so the local authority should be added as an interested party.’
The coroner refused to adjourn the inquest and C was given full disclosure of all documentation within 24 hours of the inquest. In the meantime, the local authority said that it did not wish to take part in the inquest. The inquest went ahead and the coroner's verdict was traumatic road death.
Thereafter, C requested that the verdict be quashed and that there should be a fresh inquest because the coroner:
‘Had acted unreasonably in refusing to adjourn the inquest; Should have considered whether to summon a jury in light of her comment that the case raised matters of public interest in the safety of cyclists; Had unlawfully restricted the scope of the inquest; Failed to make recommendations to prevent similar accidents in the future.’
It was held that because appropriate witnesses had been warned and in the coroner's view the time effort was sufficient, the coroner was within her rights to refuse the adjournment request.
Further, it was always open to C to instruct another competent barrister and there was no statutory obligation to adjourn the inquest because L's trial for driving with defective vision had not taken place. In any event, regardless of whether L was prosecuted for that offence he would have retained a privilege against self-incrimination for offences such as causing death by dangerous or careless driving because he would always have remained at risk of being prosecuted for a more serious offence than driving with defective eyesight.
The coroner had disclosed documentation within 24 hours and that gave C the opportunity to consider the documentation. It was also held that the other accidents were not factually similar to the incident case and the local authority had no wish to assist at the inquest or for it to be adjourned. Furthermore, if the inquest had been adjourned it would have been delayed for several months meaning that recollections would fade and distress and inconvenience would be caused to witnesses.
Therefore, in the circumstances the coroner was entitled to refuse an adjournment and for the coroner to summon a jury there had to be a prospect that some action could be taken to prevent reoccurrence of this type of accident. However, in this particular case a collision investigator could not suggest how to prevent recurrent deaths of cyclists who had come into close proximity with large vehicles, thus the precondition for summoning a jury was not satisfied. Also there were no unusual features distinguishing this accident from any other road traffic accident obliging the coroner to summon a jury. In any event, the verdict would only be quashed if it could be shown that no reasonable coroner could have refused to summon a jury, and in any event, in this case it did not fall within that category.
Further, no justifiable complaint could be made against the coroner in relation to how she handled the inquest as she had allowed all the relevant witnesses to give evidence and they had dealt with all the critically important issues. Therefore, within the realms of the Coroners Act 1988 Section 11(5) (B) and the Coroners Rules 1984 R36, it was not the inquest's purpose to apportion civil or criminal liability but to ascertain by what means E had died and the inquisition had provided a satisfactory conclusion according to that test. It was up to the coroner's discretion whether to make a recommendation to prevent similar future accidents under R43 of the Coroners Rules and no facts were put forward to show why it was Wednesbury unreasonable for the coroner to have decided that R43 should not be invoked.
As a result of the above, C's application was refused.