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Court of Appeal decision eases path to compensation for abuse victims

23 March 2010

Last weeks 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 claimants 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 abusers 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 Clonans 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 defendants 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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