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These deal with the right to a stipend (SO, 801), the right of a Circuit minister to be provided with a manse as a base for the work of ministry as well as a home (SO, 803), membership of the pension scheme (SO, 805), parenthood (SO, 806), including antenatal care, maternity, paternity, adoption and parental leave (SO,... |
There is a Connexional Allowances Committee which annually recommends stipends to Conference. STA |
There is a standard stipend and allowances for extra responsibilities, including those of a superintendent minister. STA |
Part 11 of the Standing Orders deals with complaints and discipline. STA |
It does apply to all members of the Church but it also deals with a wide range of complaints, only some of which will involve charges. STA |
There is a special procedure for charges of serious breaches of Church discipline, which could result in the removal of a minister from full connexion (SO, section 113). STA |
The complaints team is expected to assess whether a complaint should be dealt with under a different process (SO, 1123(5)). STA |
This includes the process for Circuits to decide that the appointment of a minister should be curtailed, which is the more appropriate process where a Circuit and a minister are at odds with one another but there has been no serious breach of church discipline (SO, 544). STA |
It also includes requesting the President to inquire into a relevant Circuit (SO, 1123(6)), which is what seems to have happened in this case. STA |
Now that we are able to concentrate on the details of the relationship, without the distractions of a presumption against legal relations or the characteristics of an office, several things become clear. Ratio |
The first is that it would be very odd indeed if a minister who was not paid her stipend or was threatened with summary eviction from her manse could not rely upon the terms of her appointment either to enforce the payment or to resist a possession action. Ratio |
Some time was devoted at the hearing to discussing what legal redress would be available to her if she could not rely upon the terms of a contract. Ratio |
The suggestion was that she would be a beneficiary under the trusts upon which the Church holds its property. Ratio |
The trouble with this is that the Church holds property under any number of different trusts, whereas the stipend is paid centrally even if the funds with which to pay it are raised locally. Ratio |
The body which controls her and is responsible for her remuneration and accommodation is Conference. Ratio |
The second is that a distinction has to be drawn between being a minister being in full connexion with the Methodist Church - and having a particular station or appointment within it. Ratio |
That distinction was not as fully explored in the courts below as it was with us. Ratio |
But once it is, in my view the position becomes clear. Ratio |
Admission to full connexion brings with it a life-long commitment to the Church and its ministry. Ratio |
Quite apart from the individual covenant which every member makes with her Church and with her God, the Methodist Church is an evangelical Church (DU, clause 4). Ratio |
That is why retired ministers are still expected to do what they can to further the work of the Church and no person in full connexion can give up her commitment to do this without its permission.. Ratio |
But that can be contrasted with the particular posts to which a minister is assigned. Ratio |
There is a process of assignment which begins with the invitation and acceptance at Circuit level (and no doubt something similar for other stations), continues into the matching process at Stationing Committee level, and is confirmed by Conference (although nominally an annual process, this is clearly a rubber stamp d... |
The assignment is to a particular post, with a particular set of duties and expectations, a particular manse and a stipend which depends (at the very least) on the level of responsibility entailed, and for a defined period of time. Ratio |
In any other context, that would involve a contract of employment in that post. Ratio |
The spiritual nature of some of the duties entailed does not necessarily entail a different conclusion. Ratio |
There is a spiritual component on each side of this covenant relationship. Ratio |
The main factor which tells against there being a contract between the minister and the Church in relation to the particular station to which the minister is assigned is that the minister has no choice. Ratio |
She must go where Conference stations her. Ratio |
The reality is almost certainly completely different (although we do not have much evidence about this): ministers do have to go where they are put, but it would be a very foolish Stationing Committee which assigned a minister to a station where she was not willing to serve. Ratio |
The assignment would not be specifically enforceable. Ratio |
But I do not think that a prior commitment to go where you are sent negates a mutual contractual relationship when you are sent and agree to go to a particular place. Ratio |
Yet this is the main reason for denying a contractual relationship in this case. Ratio |
Everything about this arrangement looks contractual, as did everything about the relationship in the Percy case. Ratio |
It was a very specific arrangement for a particular post, at a particular time, with a particular manse and a particular stipend, and with a particular set of responsibilities. Ratio |
It was an arrangement negotiated at local level but made at national level. Ratio |
The Church may well have had good reasons to be troubled about the respondents performance. Ratio |
But the allegation is that, instead of addressing those directly, they reorganised the Circuits so as, in effect, to make any investigation of whether or not those complaints were justified unnecessary, thus depriving the respondent of her post by organising it out of existence, without any of the safeguards to which s... |
In my view, the EAT and the Court of Appeal reached the right result in this case and I would dismiss this appeal. RPC |
This appeal arises from a tragic incident on 5 July 2000 at Gloucester Park swimming pool in Basildon, Essex. FAC |
The Appellant, then aged ten, was a pupil at Whitmore Junior School, for which the Respondent education authority was responsible. FAC |
The national curriculum, in its then form, included physical training of a number of alternative kinds, one of which was swimming, and pupils at the school had swimming lessons in normal school hours. FAC |
What appears to have happened was that the Appellant and other members of her class went to the pool, accompanied by a class teacher, Mrs Holt. FAC |
At the pool, the children were divided into groups. FAC |
The group to which the Appellant was assigned was taught by a swimming teacher, Ms. Burlinson, with a lifeguard, Ms Maxwell, in attendance. FAC |
At some point, the Appellant got into difficulties, and was found (in the judges words) hanging vertically in the water. FAC |
She was resuscitated, but suffered a serious hypoxic brain injury. FAC |
The Appellant alleges (among other things) that her injuries were due to the negligence of Ms Burlinson and Ms Maxwell. FAC |
Neither of them was employed by the education authority. FAC |
Their services had been provided to the authority by Mrs Beryl Stopford. FAC |
She was an independent contractor who carried on an unincorporated business under the name of Direct Swimming Services, and had contracted with the education authority to provide swimming lessons to its pupils. FAC |
The issue on the present appeal arises out of an allegation in the Appellants pleadings that the Council owed her a non-delegable duty of care, with the result that it is liable at law for any negligence on the part of Ms Burlinson or Ms Maxwell. Ratio |
Langstaff J struck it out on the ground that on the pleaded facts the education authority could not be said to have owed a non-delegable duty of care. FAC |
The Court of Appeal affirmed his decision by a majority (Tomlinson and Kitchin LJJ, Laws LJ dissenting). FAC |
The appeal provides a useful occasion for reviewing the law on what have been called non-delegable duties of care. FAC |
But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. FAC |
The pleadings are unsatisfactory. FAC |
There are no findings of fact and almost everything is disputed. FAC |
A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. FAC |
The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. FAC |
As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts. FAC |
Non-delegable duties FAC |
In principle, liability in tort depends upon proof of a personal breach of duty. Ratio |
To that principle, there is at common law only one true exception, namely vicarious liability. Ratio |
Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other: Majrowski v Guys and St Thomass NHS Hospital Trust [2007] 1 AC 224. Ratio |
The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. Ratio |
But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case. Ratio |
The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none. Ratio |
On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authoritys duty to pupils in its care. Ratio |
Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them? Ratio |
On either view, any liability of the education authority for breach of it is personal, not vicarious. Ratio |
The law of negligence is generally fault-based. Ratio |
Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. Ratio |
The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. Ratio |
This is because, as Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in Lewis v British Columbia [1997] 3 SCR 1145 at para 17, a common law duty of care does not usually demand compliance with a specific obligation. Ratio |
It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care. Ratio |
The expression non-delegable duty has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others. Ratio |
English law has long recognised that non-delegable duties exist, but it does not have a single theory to explain when or why. Ratio |
There are, however, two broad categories of case in which such a duty has been held to arise. Ratio |
The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. Ratio |
The early cases are concerned with the creation of hazards in a public place, generally in circumstances which apart from statutory authority would constitute a public nuisance: see Pickard v Smith (1861) 10 CB (NS) 470 (which appears to be the first reported case of a non-delegable duty), Penny v Wimbledon Urban Distr... |
In Honeywill and Stein Ltd v Larkin Brothers (Londons Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly to extra-hazardous operations generally. Ratio |
Many of these decisions are founded on arbitrary distinctions between ordinary and extraordinary hazards which may be ripe for re-examination. Ratio |
Their justification, if there is one, should probably be found in a special public policy for operations involving exceptional danger to the public. Ratio |
But their difficulties do not need to be considered further on these appeals, because teaching children to swim, while it unquestionably involves risks and calls for precautions, is not is not on any view an extra-hazardous activity. Ratio |
It can be perfectly satisfactorily analysed by reference to ordinary standards of care. Ratio |
The second category of non-delegable duty is, however, directly in point. Ratio |
It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. Ratio |
First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Ratio |
Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Ratio |
Third, the duty is by virtue of that relationship personal to the defendant. Ratio |
The work required to perform such a duty may well be delegable, and usually is. Ratio |
But the duty itself remains the defendants. Ratio |
Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. Ratio |
In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. Ratio |
The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock). Ratio |
The analogy with public services is often close, especially in the domain of hospital treatment in the National Health Service or education at a local education authority school, where only the absence of consideration distinguishes them from the private hospital or the fee-paying school performing the same functions u... |
In the law of tort, the same consequence follows where a statute imposes on the defendant personally a positive duty to perform some function or to carry out some operation, but he performs that duty by entrusting the work to some one else for whose proper performance he is legally responsible. Ratio |
In Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716, 725-728, Lord Denning MR analysed the liability of a non-contractual bailee for reward in similar terms, as depending on his duty to procure that proper care was exercised in the custody of the goods bailed. Ratio |
Origins Ratio |
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