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	How Personal Injury Cases Improved Child Protection in the Catholic Church By Richard Scorer Pannone Personal Injury Blog July 2, 2010 http://blog.pannone.com/personal-injury/how-personal-injury-cases-improved-child-protection-in-the-catholic-church-439/ Child abuse scandals in the Catholic Church are back in the news again. Countries such as Italy and Germany which seemed to have escaped the scandals are now being deluged by disclosures, and the spotlight has fallen on Pope Benedict's personal culpability in turning a blind eye to paedophile priests. These countries are catching up with the US, the UK and Ireland, where the child abuse scandals reached a peak several years ago. In the UK, the Catholic child abuse issue became front page news in 2000, when the then Archbishop of Westminster (and Head of the Roman Catholic church in England and Wales), Cardinal Cormac Murphy O Connor, was forced to admit to personal failings in his management of a paedophile priest, and announced that dramatic steps would be taken to improve the Catholic church's approach to child protection. Why did the Catholic Church in the UK have to face up to these issues a decade before its counterparts in continental Europe? An Italian lawyer once told me that Italy didn't need a system of compensation for child abuse because Italy didn't have any child abuse, but that explanation can safely be discounted. There are many cultural reasons why some societies have taken longer to face up to the reality of child abuse than others, but I would argue that common law systems of personal injury litigation have played a significant role both in exposing child abuse in the Catholic Church, and in forcing the church to reform itself. Civil claims for damages for child abuse started to become commonplace in the UK in the mid to late 1990's. The early claims which came before the courts involved secular organisations like local authorities. In 1996, Leicestershire County Council accepted liability in a group action brought by claimants who suffered abuse at children's homes in Leicestershire in which the serial abuser Frank Beck was employed. A template was established for subsequent group litigation against other organisations. The first stirrings of litigation against the Catholic Church followed shortly afterwards. In the late 1990's, I was instructed by two victims of a paedophile priest in Surrey, Father Michael Hill. Hill worked in a number of parishes in the Surrey area between 1964 and 1997. He had abused children repeatedly and extensively. Hill had been convicted and imprisoned, and my clients had received criminal injuries compensation, but they didn't want to leave the matter there: they had a sneaking suspicion that the church had known quite a lot about Hill's propensities for a long time, and wanted some accountability for serious mistakes they believed the Catholic church had made in its management of Hill. The only vehicle which the law could offer them to pursue that issue was a personal injury claim. Damages claims based on negligence were duly launched against two defendants, one being the Roman Catholic Diocese of Arundel and Brighton, the other being the then Archbishop of Arundel & Brighton, Cormac Murphy O'Connor. The claims alleged that O'Connor had personally turned a blind eye to paedophile activities whilst he (O'Connor) was Bishop of Arundel & Brighton and responsible for the supervision of Hill, whom he knew had an unhealthy interest in children. The allegation of negligence relied mainly on a series of conversations which we alleged had occurred in 1979-80 between various official of the Diocese, including O Connor, and the mother of one of the victims; conversations in which the mother told the church what she had discovered about Hill's behaviour, but which they failed to act upon. The claims were initially vigorously defended but after several disclosure applications and further witness interviews it became apparent that these conversations were the tip of the iceberg; the Diocese and O Connor in particular had known about Hill's paedophile behaviour for several decades. Hill had been referred for therapy but despite posing an obvious risk had been redeployed by the diocese to be chaplain at GatwickAirport, a role that gave him access to countless vulnerable children. The information which came to light led to settlement of the claims, but the publicity surrounding the cases also created a media firestorm with allegations that O'Connor had attempted to "cover up" his own failings by settling the litigation rather than fighting it all the way to court. Whilst he maintained publically that he had done nothing wrong in his management of Hill, and had acted in accordance with advice, he nevertheless settled the negligence claims against himself, leading many to question whether he had something to hide. O Connor maintained that the "cover up" allegation was baseless and indicative of anti-Catholic media bias. However his initially very defensive reaction was followed by a determined and commendable effort to improve child protection in the Catholic Church. A committee under Lord Nolan recommended sweeping changes, including the establishment of the Catholic Office of Child Protection (COPCA) and O'Connor embraced these recommendations without demur. For the first time, the Catholic Church now had national policies and procedures for child abuse. The church also started to accept that any serious allegation should immediately be reported to police and child protection authorities- an approach which had long been second nature for secular organisations, but which was contrary to the canon law ethos. These changes were only the first stage of reform: a church commission chaired by Baroness Cumberlege in 2007 identified many further areas for improvement. She urged the creation of a National Safeguarding Commission with stronger powers than COPCA, a change which is now being implemented. The Hill affair is only one example of how damages claims have turned the media spotlight onto the Catholic Church's past failings, forcing the church to reform itself. Colleagues in the profession who specialise in abuse litigation can all cite similar cases. Reviewing the past decade, it can be seen that the personal injury cases on behalf of the victims of paedophile priests created an unstoppable momentum for change in the church. When presented with an allegation of sexual abuse by a priest, the police and prosecuting authorities are naturally only interested in whether the events complained of actually occurred, and can be proved beyond reasonable doubt; issues of culpability by the church in failing to prevent the abuse, or in covering it up by moving the priest to another parish until the scandal died down, are largely irrelevant to a criminal prosecution of the abuser. Personal injury litigation brings another dimension to the public debate about these cases. The requirement to prove negligence has cast a spotlight on the Catholic Church's historic failings. Claimants allege that the abuse they suffered was preventable because the church knew that a particular priest was a paedophile but covered this up to avoid embarrassment. The other element that personal injury litigation brings to the debate, at least when awards are publicised, is a greater awareness of the lifelong damage caused by abuse, and public discussion about the appropriate levels of compensation for this. Most people are appalled to discover how low the damages awards are in this country for child abuse, and public awareness of this is a useful counterweight to media hysteria about the 'compensation culture'. In abuse cases awards over £100,000 are fairly unusual, although they are becoming more common. A victim of child abuse has no established earnings pattern predating the abuse, which can serve as a benchmark for what he or she would have earned if the abuse had not occurred. Also, many victims of child abuse come from vulnerable and disadvantaged backgrounds – their vulnerability is what makes them easy prey for abusers. Therefore, it is often suggested that their earnings potential may have been modest in any event, irrespective of the abuse. These are often very difficult hurdles for a claimant to overcome. Sometimes, particularly where a high earning comparator parent or sibling can be adduced, damages awards against the Catholic Church have reached the £600,000 - £700,000 level. However, this is very unusual.In this respect, litigation in the UK has been very different from the US. Although personal injury claims have played a major role in both countries in changing the Catholic Church's attitude to child protection, in the UK this has been mainly a function of the publicity surrounding cases. In the US, by contrast, the main lever of change has been financial. Multimillion dollar awards, made by juries rather than judges and including an element of punitive damages not payable in the UK, have driven many Catholic Dioceses to the brink of bankruptcy. The financial imperative for the Catholic Church in the US to stamp out child abuse within its ranks has become irresistible. The way in which personal injury litigation has exposed the Catholic Church's failings highlights a dilemma about the basis on which such claims are brought. One of the main legal battles in abuse litigation in the past decade has been about whether claims should be framed on the basis of negligence or vicarious liability. To what extent is an employer of an abuser vicariously liable for abuse committed in the context of employment? Until 2001, no vicarious liability could attach to sexual abuse- it could not be regarded as a mode of carrying out the employee's duties. Claimants had to prove that the employer was negligent – that he knew or ought to have known about the abuse or ought to have suspected it. This changed with the decision of the House of Lords in Lister (2001). The House of Lords held that vicarious liability could attach to the employer where the employee's misconduct "was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable". From the point of view of claimants wanting an early payout, this was a significant advance in the law. In many cases, it would no longer be necessary for the claimant to prove negligence by the employer- the simple fact of employing the abuser would be sufficient to create liability. This was a result for which claimant abuse lawyers had fought for several years. In practical terms, much of the benefit for claimants of the Lister decision was delayed until 2007, when the House of Lords judgement in Hoare unified the limitation regimes applying to negligence and deliberate assault cases. Until Hoare, a claim based on vicarious liability was still subject to a six year unextendable limitation period, which meant that most claimants were unable to bring a claim based on vicarious liability. However, post Hoare, the path has been clear for claimants wanting to ague vicarious liability. That's obviously beneficial for individual claimants. However, one also has to recognise that if liability attaches irrespective of fault, it's no longer necessary for lawyers to probe into how the church handled paedophile cases, and whether it was guilty of negligence or worse. The requirement to prove negligence exposed the church's failings; under a vicarious liability regime, more favourable though it is for claimant compensation, none of this would have come to light. There is no easy answer to that dilemma. I want claimants to be compensated as quickly and simply as possible; we also need to bear in mind the societal benefits of a negligence based approach. As personal injury lawyers we regularly get attacked for the seedier aspects of the claims culture, even when these are not of our making. It's all the more important, therefore, that when personal injury litigation helps to make society a better place, we stand up and shout about it. Personal injury cases have played a central role in forcing the Catholic Church to reform itself, and as APIL members we should be proud to say so. Richard Scorer, Head of Personal Injury, Pannone LLP
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