Claims against the Catholic Church: When is there vicarious liability, when is there a duty of care and are the situations different?

16 April 2010 by

Duty of care and the Catholic Church - the MAGA caseWe posted last week on issues of breach of duty in cases involving child protection, and mentioned the MAGA case as an important decision in extending the duty of care to priests in the Catholic church. The lawyers in the case have now written up the judgment.

Case comment by Elizabeth-Anne Gumbel QC and Justin Levinson

(Barristers for the Claimant, MAGA)

MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, Court of Appeal (Lord Neuberger MR, Lord Justice Longmore and Lady Justice Smith) (read judgment)

This appeal was brought with permission from the trial Judge Mr Justice Jack. The claim arose out of sexual abuse suffered by the Claimant whilst a child living in the area of the Church of Christ the King in Coundon, Coventry. This was a Catholic church under the control of the the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The priests appointed to work at that church in the 1970s included a senior priest father McTernan and a younger priest Father Clonan. The Claimant was seriously and repeatedly sexually assaulted over a number of months by the younger priest known as Father Clonan. The abuse took place after Father Clonan befriended the Claimant, invited him to the church youth club and then to the Presbytery where Father Clonan and other priests including the senior Priest Father McTernan lived.

At the trial the issues between the parties were as follows:

(a) Whether the Claimant was to be treated as under a disability by reason of being of unsound mind for the purposes of sections 28(1) and 38(2) of the Limitation Act 1980.

(b) In the event that the Claimant was not to be treated as under a disability within the meaning of section 38(2) whether the action was limitation barred pursuant to sections 11 and 14 Limitation Act 1980.

(c) In the event that the action was limitation barred pursuant to sections 11 and 14 Limitation Act 1980 whether the Court should exercise its discretion pursuant to section 33 Limitation Act 1980 to allow the action to proceed.

(d) Whether the abuse by Father Clonan described by the Claimant in fact occurred.

(e) Whether the Defendants (through their senior priest Father McTernan) were notified of allegations that Father Clonan had abused another boy in about 1974 and prior to the abuse perpetrated on the Claimant and whether action should have been taken by the Defendants in respect of this report.

(f) Whether the Claimant himself reported abuse to Father McTernan and whether his allegations should have led to action being taken by the Defendant.

(g) Whether the Defendants were vicariously liable for the abuse perpetrated by Father Clonan.

(h) Whether the Defendant owed to the Claimant a duty of care in respect of the actions of Father McTernan.

(i) The quantum of damages that the Claimant should receive if the action succeeded.

Although there was an issue between the parties as to whether the Claimant had the capacity to manage the litigation the Judge resolved this issue in the Claimant’s favour and found that he did have not have capacity. The proceedings were appropriately conducted with the Official Solicitor as litigation friend. As the Claimant had suffered from a disability from shortly after birth it followed from the Judge’s finding that he did not have the capacity to manage the litigation and from sections 28 and 38 of the Limitation Act 1980 that these proceedings were not limitation barred. Because the issue of capacity was in dispute the Judge also went on to find that if the Claimant did have capacity the proceedings were brought within the relevant limitation periods in accordance with the provisions of the Limitation Act 1980.

At trial therefore the Claimant succeeded on the following contested issues;

(a) capacity

(b) Section 14 Limitation Act 1980

(c) Section 33 Limitation Act 1980

(d) whether the abuse occurred

(e) whether the Defendant through Father McTernan was negligent

(f) whether the Claimant should be awarded damages for loss of

earnings.

The Claimant’s claim failed because the Judge found that the Defendants were not vicariously liable for the abuse of Father Clonan and the Defendants did not owe the Claimant a duty of care in respect of investigating earlier allegations of abuse by Father Clonan.

The Claimant appealed the decision of Mr Justice Jack in respect of vicarious liability and breach of duty. The Defendant cross-appealed the decision of Mr Justice Jack in respect of capacity, limitation pursuant to section 14, limitation pursuant to section 33, whether the abuse occurred and whether Father McTernan was negligent. Effectively the only issue not appealed was quantum.

During the course of the hearing the Court of Appeal indicated they would uphold the Judges’s finding that the Claimant did not have capacity and therefore did not need to hear the arguments under section 14 and 33 Limitation Act 1980.

In a reserved Judgment the Court of Appeal upheld the Judge’s findings that the abuse had occurred and that the Defendant’s were vicariously liable for negligence of Father McTernan in not pursuing earlier complaints of abuse. The Court of Appeal reversed the decision of the trial judge, Mr Justice Jack who had found the Catholic Church was not vicariously liable for the actions of a catholic priest in abusing a non-catholic boy. The Court of Appeal accepted the Claimant’s argument that the Judge had looked at the priest’s motives rather than the pretext by which he persuaded the Claimant to attend the Presbytery where he was abused. Applying the close connection test the priest was purporting to carry out his work as a priest although his actual motive was simply to abuse.

In respect of duty of care the Court of Appeal also reversed the decision of Jack J. and found that the church clearly owed a duty of care to boys who might be invited by a priest to the Presbytery, this was not tantamount to owing a duty to the whole world as the Judge had found.

Further the Court of Appeal accepted the Claimant’s contention that the circumstances in which a duty of care was owed might be wider than those where there was vicarious liability.

In respect of vicarious liability Lord Neuberger MR described the position as follows;

In this case, the Judge accepted, in paragraph 100, that youth work was part of Father Clonan’s employment as a priest, and that his position as a priest “gave him the opportunity to abuse the claimant”. However, he said, that was “not by itself sufficient” to render the Archdiocese liable. He then went on to state that “Father Clonan’s association with the claimant was founded on his use of the claimant to wash his car, do cleaning … and to iron his clothes”, “an employment which was not a priestly activity”, and had nothing to do with “draw[ing] the claimant into the activities of the Church”. “The association”, he said, “was not part of evangelisation”. Accordingly the Judge dismissed the claim based on vicarious liability.

Although I acknowledge the issue is not easy to resolve, I have reached a different conclusion from the Judge. In that connection, while an appellate court should pay proper respect to a finding of this sort by the trial judge, it seems to me that, unlike in relation to the question whether section 28(1) of the 1980 Act applies, the issue, although very much fact-dependant, is ultimately one of law rather than of inference from facts, and, at least in this case, the Judge had no particular advantage over this court by his having seen live witnesses. Further, I consider that there is force in Ms Gumbel’s argument that the Judge appears to have erred in principle by focussing on the actual motives of Father Clonan, and placing too much emphasis on the acts of abuse themselves.

The tortfeasor was a Roman Catholic priest, and the claimant was not a Roman Catholic, and at no time had anything to do with the Church itself (other than doing some cleaning work in the Church once, which I regard as an irrelevant isolated incident). To that extent, the claimant’s case is clearly weaker than, or at least distinguishable from, that of the successful claimant in Lister [2002] 1 AC 215, or of a Roman Catholic boy, such as M, who worked as an altar server at the Church and was abused by Father Clonan. However, there are a number of factors, which, when taken together, persuade me that there was a sufficiently close connection between Father Clonan’s employment as priest at the Church and the abuse which he inflicted on the claimant to render it fair and just to impose vicarious liability for the abuse on his employer, the Archdiocese.

Lord Neuberger then listed 7 reasons why he found there was the requisite close connection:

(a) Father Clonan was normally dressed in clerical garb, and was so dressed, when he first met the claimant and was referred to as “Father” he purported to have a degree of moral authority through this role.

(b) Father Clonan’s functions as a priest included a duty to evangelise, or “to bring the gospel to be known to other people”. Father Clonan developed his relationship with the claimant under the cloak, or guise, of performing his pastoral duties.

(c) Father Clonan was given a special responsibility for youth work at the Church. When effectively “grooming”, the claimant, Father Clonan was ostensibly carrying out one of his specifically assigned functions in the Church.

(d) Father Clonan was able to develop, and did develop, his relationship with the claimant by inviting him to a disco which was on Church premises and which he organised as a priest at the Church.

(e) Clearing up after the disco was work on Church premises at the request of a priest at the Church.

(f) Cleaning the presbytery was working at the request of a priest on premises owned by the priest’s Archdiocese and adjoining the Church.

(g) The first incident of sexual abuse, as well as a number of other incidents, against the claimant occurred in Father Clonan’s room in the presbytery. It is not merely that the abuse started and continued in the employer’s premises where the employee resided because of his employment. It is also that the employee’s job, Father Clonan’s priestly duty, involved spending time alone with individuals such as the claimant. This was supported by evidence called by the Defendant from Monsignor Moran.

The Judge had relied on the Canadian case of Jacobi (1999) 174 DLR (4th) 71, in support of his finding that Father Clonan only had the opportunity to abuse because of his role as a priest but that the abuse was not closely connected to his role as priest. Lord Neuberger described how proper application of the analysis in Jacobi supported the Claimant’s case not the Judge’s conclusion. The analysis was as follows:

…[in] Jacobi paragraph 79, the Canadian Supreme Court suggested that, in order to establish vicarious liability, a claimant must 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”. It appears to me, for the reasons given, that requirement is satisfied. That view is supported when one turns to the five factors which the court immediately went on to identify as relevant when considering that requirement. As applied to the facts of this case, they are (a) “the opportunity afforded” by the Archdiocese to Father Clonan “to abuse his … power”; (b) “the extent to which” the sexual abuse of the claimant “may have furthered the [Archdiocese’s] aims”; (c) “the extent to which the [sexual abuse] was related to … intimacy inherent” in the functions of the Archdiocese or the Church; (d) “the extent of the power conferred on [Father Clonan] in relation to the [claimant]”; (e) the vulnerability of potential victims to the wrongful exercise of [Father Clonan’s] power”. Given his status and functions as a priest, including his evangelising duties, the fact that those functions involved one-to-one meetings, his specific functions in relation to the young, and the apparent absence of any supervision by Father McTernan or anyone else, it seems to me that, of the five factors, four apply to a significant extent. On the basis that it is to be interpreted literally, only (b) does not apply, and it would (one hopes) virtually never apply in a vicarious liability child sex abuse case; if it is meant to refer to the ostensible purpose of the relationship, then (b) is satisfied.

On the vicarious liability point Lord Neuberger concluded:

“ I consider that, on the facts of this case, the test laid down by Lord Steyn in Lister [2002] 1 AC 215, paragraph 28, is satisfied. Father Clonan’s sexual abuse of the claimant was “so closely connected with his employment” as a priest at the Church “that it would be fair and just to hold the [Archdiocese] vicariously liable”.

Lord Justice Longmore also found the close connection test satisfied but for slightly different reasons. He stated:

The first question which arises is whether an undertaking of responsibility, similar to that of a school or a local authority to its children, is essential before vicarious liability can be imposed.

In my judgment it is not. Such responsibility is just one instance in which the test of close connection, enunciated by Salmond and espoused by Lister , may be satisfied. But there is no reason why there may not be other instances.

Since this case is not covered by previous authority, it may be necessary to have in mind the policy behind the imposition of vicarious liability. That is difficult because there is by no means universal agreement as to what that policy is. Is it that the law should impose liability on someone who can pay rather than someone who cannot? Or is it to encourage employers to be even more vigilant than they would be pursuant to a duty of care? Or is it just a weapon of distributive justice. Academic writers disagree and the House of Lords in Lister did not give any definitive guidance to lower courts.

Regardless of general policy considerations, however, it seems to me to be important to look at the nature of the employer in this particular case. For the purposes of this action (but not otherwise), it is accepted that Father Clonan was an employee of the Archdiocese. The Archdiocese is a Christian organisation doing its best to follow the precepts of its Founder (see, in particular, Mark 10.13-16). Like many other religions, it has a special concern for the vulnerable and the oppressed. That concern may not be quite the same as the legal obligation to care or assumption of responsibility for care that was emphasised by Lord Steyn or Lord Hobhouse in Lister but it seems to me to be analogous.

In the case of the Roman Catholic Church, this situation is further emphasised by its claim to be the authoritative source of Christian values. For centuries the Church has encouraged lay persons to look up to (and indeed revere) their priests. The Church clothes them in clerical garb and bestows on them their title Father, a title which Father Clonan was happy to use. It is difficult to think of a role nearer to that of a parent than that of a priest. In this circumstance the absence of any formal legal responsibility is almost beside the point.

What is said in this present case is that while the Church would accept responsibility for abuse of an altar boy and (probably) a member of the congregation, this case is different because the victim of Father Clonan’s abuse came into his ambit in a non-church manner, by admiring his sporty Triumph car, by taking part in disco evenings to which all were welcome, clearing up afterwards and then doing jobs in the Presbytery where Father Clonan lived with Father McTernan. But the progressive stages of intimacy were to my mind only possible because Father Clonan had the priestly status and authority which meant that no one would question his being alone with the claimant. It is this that provides the close connection between the abuse and what Father Clonan was authorised to do.

Lady Justice Smith agreed with the judgments of both Lord Neuberger MR and Lord Justice Longmore.

In respect of the duty of care point Lord Neuberger MR described the issue as follows:

“The alternative way in which the claimant puts his case against the Archdiocese involves an allegation of wrongdoing on its part, namely failure to take forward complaints which Father McTernan received from M’s father in 1974 and/or from the claimant in 1975 or 1976. In this connection, the Archdiocese accepts that, to the extent that Father McTernan was negligent, it is vicariously liable for such negligence. However, it contends that the Judge was wrong to conclude that M’s father complained to Father McTernan, or that there was any negligence on Father McTernan’s part; it also supports the Judge’s finding that there was no duty of care owed to the claimant.

Although in view of the finding that the Defendant was vicariously liable for the abuse by Father Clonan it was necessary to decide the issue the Court made findings that a duty of care was also owed and that the test was distict from the test as to whether there was a close connection for the purposes of the vicarious liability finding. The analysis was as follows:

The test as to whether or not a duty of care is owed is conveniently taken from a well-known passage in the opinion of Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605, 617H-618A, which was quoted by the Judge at paragraph 104 of his judgment. Lord Bridge said that “in addition to the forseeability of damage”, the “relationship” between the parties must be “one of ‘proximity’ or ‘neighbourhood’ and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.

Applying this test, I consider that the Judge was wrong to conclude that the Archdiocese owed no duty of care to the claimant. He seems to have based this conclusion on two factors; first, that it would not be reasonable to conclude that there was a duty “to the world at large”, and secondly, that, as there was no vicarious liability, it effectively followed that there was no duty of care. I am unimpressed by either reason.

As to the first reason, the duty alleged is a duty on the Church, through Father McTernan, to keep a look out for, and to protect, young boys with whom Father Clonan was associating, after a complaint that he had sexually abused a boy. Particularly if one focuses, as it seems to me that one should, on the claimant’s visits to the presbytery, Archdiocese property where Father Clonan lived and could be alone with the claimant, and where Father McTernan also lived, I find it hard to see why it should not be fair just and reasonable to impose a duty on Father McTernan, for which the Archdiocese would be vicariously liable. To treat this as a duty to the world in general is, in my view, to mischaracterise it.

The Judge’s second reason appears to me to be wrong in principle and, in the event, wrong on the facts. It is wrong on the facts because, for the reasons already given, I consider that the Archdiocese was vicariously liable for Father Clonan’s sexual abuse of the claimant. The reason is wrong in principle because it is easy to envisage circumstances where an employer could owe, and be in breach of, a duty of care, without being vicariously liable, in respect of the sexual abuse committed by an employee. A school would not normally be vicariously liable for sexual abuse committed against a pupil by a gardener employed at the school, but, if the school had received previous allegations against the gardener of sexual abuse of pupils, failure to deal appropriately with those complaints so that he committed the abuse complained of would, at least on the face of it, give rise to a claim in negligence against the school. This proposition is underscored by the fact that, although the majority of the Canadian Supreme Court agreed that the vicarious liability claim in Jacobi (1999) 174 DLR (4th) 71 should be dismissed, they nonetheless remitted the case for the issue of breach of duty to be considered – (1999) 174 DLR (4th) 71, paragraph 87.

In addition to being of interest in the analysis of the application of both the test for vicarious liability and the test for duty of care to the Roman Catholic Church the case is of wider interest in the analysis of both these tests outside residential care homes and institutions. The case is also of some interest in respect of the issue of whether the Claimant had capacity to run the litigation and whether he required a litigation friend and a deputy to manage his affairs. This aspects have not been addressed in this article.

Elizabeth-Anne Gumbel QC

Justin Levinson

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