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Court of Appeal decision eases path to compensation for abuse victims
24 March 2010
Last week’s Court of Appeal judgement in the case of MAGA v
The Trustees of the Birmingham Archdiocese of the Roman Catholic
Church [2010] EWCA Civ 256, decided in the claimant's favour
on two important and related issues; vicarious liability and the
existence of duty of care.
The claimant alleged sexual abuse by a Priest, Father Clonan. Fr
Clonan had not involved the claimant in church activities. Instead
he had befriended him and paid him for various cleaning and tidying
jobs. Father Clonan had special responsibility for youth work, and
the activities he organised included discos, which the claimant
attended. Prior to the claimant coming into contact with Father
Clonan, the father of another child had complained about sexual
abuse by Father Clonan to his supervisor Father McTernan, who
failed to act on this information.
Vicarious liability
The case of Lister v Hesley Hall sets out the test for
vicarious liability – were the abuser’s wrongful acts so closely
connected to his job that it is fair to place responsibility for
them on his employer? Here the judge at first instance decided
there was no vicarious liability, because “his use of the
claimant to wash his car, do cleaning… and to iron his clothes… was
not a priestly activity” and “was not part of
evangelisation”.
The Court of Appeal disagreed. Somewhat inconsistently, it
decided vicarious liability was an issue of law, not fact (giving
it greater ability to review the issue), and then conducted a close
factual analysis. It found the following facts persuasive:
- Fr Clonan derived moral authority from his clerical garb and
his position
- Fr Clonan had a duty to evangelise, and had special
responsibility for youth work, so befriending the claimant was
ostensibly within his duties
- Fr Clonan developed his friendship with the claimant in part
through official church discos
- Some of the cleaning jobs carried out by the claimant were in
the presbytery, which was church property
- The first instance of abuse occurred in the presbytery
- It was part of Fr Clonan’s job to spend time one to one with
individuals such as the claimant
Existence of duty of care
Caparo v Dickman gives the test for the existence of a
duty of care, one element of which is a close relationship between
the claimant and defendant, sometimes described as a relationship
of “neighbours”. The defendant argued that to impose such a duty
here would effectively impose a duty “to the world at large”,
because the church had no special relationship with the
claimant.
The Court of Appeal thought differently. The role of Fr McTernan
was crucial here. Given the prior complaint about Fr Clonan made to
Fr McTernan, the Court of Appeal thought it reasonable to impose
upon Fr McTernan a duty to look out for and protect young boys who
came into contact with Fr Clonan, particularly where that contact
was at the presbytery. It then had no difficulty deciding Fr
McTernan had breached that duty by failing to follow up the initial
complaint.
The Court of Appeal also dismissed as illogical the defendant’s
argument that if there was no vicarious liability (in fact there
was here) there could be no direct duty of care.
This decision highlights the criteria required to import
vicarious liability. While the decisions were both heavily
dependant on the particular facts of this case, we can expect to
see claimants relying on this case in the future.
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