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Morgan, Phillip David James (2012)
Languages: English
Types: Article
Subjects:
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    • 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
    • 140 fTohrethCeopuurtrpoofsAespopfeaSlecintioJnG8E2(h1e)ldofththaet StheexyDwisecrreimn ointaetmiopnloAycetes1,9a7t5.[30] per Ward L.J., at [131],
    • 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.
    • 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.”
    • 161 (JC.aMmubrrpidhgye, 2“0J0u7r)i,d1ic0a6l-1F0o7u.ndations 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.
    • 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
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