Introduction
In JXH v The Vicar, Parochial Church Council and Churchwardens of the Parish Church of Holcombe Rogus, the Court recently found for the defendant on the ‘close connection’ test, finding that it was not therefore vicariously liable for abuse committed by its incumbent vicar.
Patrick Williams, Associate Solicitor in Abuse at Keoghs, considers the Court’s decision and its implications on other cases involving vicarious liability Stage 2 arguments.
Background
- The claimant was a member of the Crediton Church and part of its youth group, known as “the Young Communicants”, between 1969 and 1976. Reverend Vickery House (“House”) was curate of the Crediton Church and involved in its youth work, including leading “the Young Communicants”.
- In 1976, House became the incumbent vicar of the Parish of Holcombe Rogus (“the Parish”) and moved with his wife to live in the Rectory in the Parish, while retaining his family home in Hittisleigh Mill (“the Hittisleigh House”).
- House was instrumental in organising for two young men to stay in a cottage (“the Cottage”), through private arrangement in the Parish. House knew the men, who were members of the Crediton Church. In 1979, under a similar arrangement the claimant started living at the Cottage. The occupiers considered themselves as being in a monastic community (“the Community”) and House attended there from time to time and had a role in practice about what happened there.
- House sexually assaulted the claimant in about 1979 at the Hittisleigh House, and, at some point between 1980 and 1981, at the Wellington public swimming pool located outside of the Parish.
- Some years later, House became part of another quasi-monastic community in the Chichester area and the claimant later joined too. During this period, the claimant was sexually assaulted by House and at least one other senior member of the Church of England clergy.
- In 2015, House was convicted of various sexual assaults, including those which took place while he was curate of the Crediton Church.
- The matter proceeded to trial before Master Dagnall at the High Court.
Judgment
Stage 1
The parties had already agreed that, on the facts of this case, Stage 1 of the test for vicarious liability was satisfied. However, the defendant denied that Stage 2 was satisfied.
Stage 2
Master Dagnall considered the recent Supreme Court judgment in Trustees of the Barry Congregation of Jehovah's Witnesses (Appellant) v BXB (Respondent) 2023 UKSC 15 (“BXB”), which is now the leading authority in this area of law.
In his judgment, Master Dagnall concluded that each of the sexual assaults committed on the claimant by House was not so closely connected with his authorised activities in his quasi-employment by the defendant as Vicar of the Parish. In analysing the evidence, the court found that:
- The assaults took place outside the Parish and not on any Parish premises.
- The 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”.
- In the context of the assaults, House was not wearing his “metaphoric uniform”.
- The assaults were linked to House’s role within the Community rather than “Parish” pastoral care or religious instruction.
- House abused the claimant in and by use of his positions as director of the Community (and to a lesser extent as historical acquaintance) rather than as 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.
- The mere fact that House was able to create the overall situation because he was the Vicar of the Parish does not mean that his committing the wrongs was sufficiently closely connected with his "authorised activities" as Vicar of the Parish.
- The events of and surrounding the assaults were not “inextricably woven” with the carrying out of the “authorised activities” of House as Vicar of the Parish but were “inextricably woven” with the activities of the Community.
- The surrounding contexts of the two sexual assaults (working on the Hittisleigh House away from the Parish, and learning to swim at a swimming pool outside the Parish) were not ordinary "pastoral care", such as to be part of an "authorised activity" of the defendant's quasi-employment.
Accordingly, Master Dagnall’s judgment is that the “closely connected” test was not satisfied, therefore the claimant’s claim was not successful on Stage 2 of the test for vicarious liability. The claim was therefore dismissed.
Comment
The court’s decision follows the Supreme Court guidance in BXB and reiterates the position in regards to Stage 2 of the vicarious liability test considered in the more recent Court of Appeal case of MXX v A Secondary School [2023] EWCA 996 and the Court of Session Scottish case of C & S v Norman Shaw and Live Active Leisure [2023] CISH 36. In both of these cases, it was found that the Stage 2 close connection test was not satisfied.
The decision in this case is a welcome reinforcement in regards to Stage 2 of the vicarious liability test, confirming that it applies equally to abuse cases, as it does in other vicarious liability cases, and that the Court must be satisfied that there is a sufficiently close connection between the wrongful act and the activities the tortfeasor was authorised to do while acting in the course of their employment or quasi-employment.
For more information, please contact Patrick Williams, Associate Solicitor in Abuse at Keoghs.
