Vicarious liability for abuse of non-Catholic

From The Times

March 25, 2010

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Court of Appeal

Published March 25, 2010

MAGA v Trustees of the Birmingham Archdiocese of the Roman Catholic Church

Before Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Longmore and Lady Justice Smith

Judgment March 16, 2010

There was a sufficient connection between what a priest with special responsibility for youth work was employed to do and his sexual abuse of a non-Catholic boy whom he met during that work, for his employer, an archdiocese of the Catholic Church, to be vicariously liable for that abuse.

The Court of Appeal so held, allowing the appeal of the claimant, MAGA, by his litigation friend, the Official Solicitor, against the dismissal by Mr Justice Jack ([2009] EWHC 780 (QB)) of his claim for damages for sexual abuse against the defendant, the Trustees of the Birmingham Archdiocese of the Roman Catholic Church, and dismissing the church’s cross-appeal on issues including limitation, the finding of sexual abuse by the priest and negligence.

There was no appeal against the assessment of damages by Mr Justice Jack of £17,500 in general damages and £15,000 for loss of earnings.

Ms Elizabeth-Anne Gumbel, QC and Mr Justin Levinson for the claimant; Mr Edward Faulks, QC and Mr Nicholas Fewtrell for the church.

THE MASTER OF THE ROLLS said that the claimant’s case was that, whether the archdiocese acted in any blameworthy way or not, it was responsible for the wrongful acts of sexual abuse perpetrated on the claimant by the priest, Father Clonan.

The archdiocese accepted that the priest should be treated as its employee for the purposes of this case, but made no general admission that a priest was its employee.

The House of Lords had authoritatively laid down the law on vicarious liability for the claimant’s abuse in Lister v Hester Hall Ltd (The Times May 10, 2001; [2001] 1 AC 215), in which a company which owned and ran a school was held liable to a pupil in a boarding house sexually abused by a person the company employed as the warden of the house.

Lord Steyn said at paragraph 28 that the correct test was whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.

The majority of the House of Lords regarded the approach to vicarious liability of the Canadian Supreme Court in two cases of sexual abuse of children, Bazley v Curry ((1999) 174 DLR (4th) 45) and Jacobi v Griffiths ((1999) 174 DLR (4th) 71) as correct and helpful: see ([2002] 1 AC 215, paragraphs 27, 48 and 52).

His Lordship had reached a different conclusion from the judge. Although very much fact-dependent, the issue was ultimately one of law.

The tortfeasor was a Catholic priest and the claimant a non-Catholic having nothing to do with the church. To that extent, his claim was clearly weaker than or at least distinguishable from that of the successful claimant in Lister or that of a Catholic boy. However, a number of factors, taken together, persuaded his Lordship that there was a sufficiently close connection between Father Clonan’s employment as a priest at the church and the abuse he inflicted on the claimant to render it fair and just to impose vicarious liability for the abuse on his employer, the archdiocese.

The priest, who normally dressed in clerical garb, was so dressed when he met the claimant. A priest had a special role involving trust and responsibility in a more general way even that a teacher, a doctor or a nurse, and in a sense was never off duty. He had a degree of general moral authority which no other role enjoyed.

Father Clonan had a duty to evangelise and developed his relationship with the claimant under the guise of performing his pastoral duties.

As the claimant was aged 12 or 13 when their association started, it was significant that the priest had been given a special responsibility for youth work at the church. When effectively grooming the claimant, the priest was ostensibly carrying out one of his specifically assigned church functions.

The claimant was drawn in to the relationship with the priest through a disco organised on church premises by Father Clonan. His role gave him the status and opportunity to draw the claimant further into his sexually abusive orbit by ostensibly respectable means connected with his employment as a priest. The abuse started on church premises in the presbytery, adjoining the church, where Father Clonan lived.

In Jacobi the Canadian Supreme Court suggested that, to establish vicarious liability, a claimant had to show that there was a material increase in the risk of harm occurring in the sense that the employment significantly contributed to the occurrence of the harm. That requirement was established in the present case.

His Lordship also agreed with Lord Justice Longmore’s analysis. Taking all relevant factors into account, Lord Steyn’s test in Lister was satisfied.

LORD JUSTICE LONGMORE said that the case was not precisely covered by Lister since it would be difficult to say that the church in general or the archdiocese in particular had undertaken to care for the claimant. That was the duty of his parents or his school, not a church to which he did not belong.

It was not essential to establish an undertaking of responsibility, similar to that of a school or a local authority to its children, before vicarious liability could be imposed. Such responsibility was just one instance in which the test of close connection might be satisfied. There could be others.

In this case it was important to look at the nature of the employer. The church had a special concern for the vulnerable and the oppressed. Although not quite the same as the legal obligation to care or the assumption of responsibility for care stressed in Lister, it was analogous.

That situation was emphasised by the claim of the Roman Catholic Church to be the authoritative source of Christian values. For centuries the church had encouraged lay people to look up to and revere their priests. It was difficult to think of a role nearer to that of a parent than that of a priest, so the absence of any formal legal responsibility was almost beside the point.

While the church had said that it would accept responsibility for an altar boy or a member of the congregation, this case was said to be different because the victim of the priest’s abuse came into his ambit in a non-church manner.

Yet the progressive stages of intimacy were possible only because the priest had the priestly status and authority so that no one would question his being alone with the claimant. That provided the close connection between what the priest was authorised to do and the abuse.

Lady Justice Smith delivered a concurring judgment.

Solicitors: Clifton Ingram LLP, Wokingham; Hill Dickinson LLP, Liverpool.