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	Richard Scorer Examines the Legal Principles behind the Child Abuse Scandal in the Catholic Church The Pannone November 25, 2011 http://www.pannone.com/media/articles/personal-injury/in-the-confessional,-richard-scorer-examines-child-abuse In brief: the extent to which the church should be held institutionally liable for the behaviour of individual priests. Child abuse compensation claims have increased in recent years and a significant proportion of these claims have been brought against the Catholic Church. Many paedophile priests have been convicted and sentenced, but many of their victim shave also tried to hold the Catholic Church accountable in the civil courts. Some significant awards of damages have been made. In 2005, one victim of abuse by a priest of the Roman Catholic Archdiocese of Birmingham was awarded ?635,000, a record in an abuse compensation claim. In dealing with these cases, the courts have had to grapple with the extent to which the Church should be held institutionally liable for the behaviour of individual priests. The issue has been considered most recently in JGE v English Province of Our Lady of Charity (1) and the Trustees of the Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB), [2011]All ER (D) 50 (Nov) (judgment handed down 8 November 2011), a case which has attracted considerable press interest. Background Child abuse litigation has been be devilled by arguments about the extent of institutional liability for individual misconduct. Before 2001, no organisation could be held vicariously liable for the actions of an employee who committed child sexual abuse. Such behaviour was not deemed to be within the course of employment. Therefore, a claimant seeking to hold the Church liable for damages had to prove that the Church knew or ought to have known of the abuse; a tall order evidentially, even if the claimant had suspicions of institutional knowledge and cover up. But in Lister v Hesley Hall Ltd [2002] 1 AC 215, [2001] 2All ER 769, the House of Lords held that an employer could be vicariously liable for sexual abuse committed by an employee 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 claimant standpoint, this was a significant advance in the law, although due to problems concerning the Limitation Act, the full benefit of this decision was not felt until 2008, in the House of Lords decision in A v Hoare [2008] UKHL 6, [2008] 2 All ER 1. That decision, which enabled the courts to waive the primary limitation period in direct assault cases provided a fair trial is still possible, paved the way for large numbers of historic abuse claims to be successfully argued on the basis of vicarious liability. Maga v Archdiocese of Birmingham In this context, with vicarious liability firmly established in principle and the limitation defence having been narrowed down, it is perhaps not surprising that institutional defendants like the Catholic Church have tried to contest the scope of vicarious liability. The extent to which the Church (or rather its constituent dioceses and orders) can be said to be vicariously liable for the actions of a priest who abused a child came before the English courts in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCACiv 256, [2010] All ER (D) 141 (Mar). In this case, the priest, Father Clonan, had befriended and abused a child living in the Archdiocese who was a non-Catholic; the priest and his victim initially met through their shared interest in sports cars, the priest then employed him to do odd jobs and subsequently some of the abuse took place on church premises. At first instance, the fact that Father Clonan’s association with the claimant was founded on his use of the claimant to wash his car and do his cleaning, in other words “non priestly activities”, was fatal to the claim; the judge concluded that the church was not vicariously liable as “the association was not part of evangelisation”. However, overturning the judge at first instance, the Court of Appeal found that there was the requisite “close connection” between the church and the abuse. Neuberger LJ listed seven reasons for this close connection. These included such things as the fact that Father Clonan was normally dressed in clerical garb and was so dressed when he first met the claimant, and was referred to as “Father”; the fact that his functions as a priest included the duty to evangelise amongst non-Catholics; the fact that Father Clonan had special responsibility for youth work in the church; and the fact that some of the grooming and abuse took place on church premises. Similarly Longmore LJ stated that: “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 upon 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 parent than that of priest. In this circumstance the absence of any formal legal responsibility is almost beside the point. ” In finding for the claimant, the Court of Appeal drew on the Canadian case of Jacobi, a decision in which the Canadian Supreme Court applied the concept of “enterprise risk”. In order to establish vicarious liability, the claimant must show that the “employment significantly contributed to the occurrence of the harm”, in other words the risk of abuse was inherent in the defendant’s enterprise. The Court of Appeal decision in Maga highlighted the influence of Canadian cases on the English judicial analysis of vicarious liability. JGE In Maga, the Birmingham Archdiocese of the Catholic Church had conceded, for the purposes of that case only, that in principle it could be vicariously liable for the actions of its priest. However, in the JGE case, the church went a stage further and tried to argue that it could not be vicariously liable for the actions of a priest in any circumstances because a priest is not an employee, or even akin to one. If this argument were to succeed, then effectively the Catholic Church would cease to have any liability whatsoever for abuse committed by paedophile priests, save where negligence could be proved—are turn to the pre-Lister position. The anonymised claimant JGE is a woman who alleges she was sexually abused by Father Wilfred Baldwin who worked in the diocese of Portsmouth during the 1970s. She says that she was raped by Father Baldwin (now deceased) when she was a six-year-old resident in a local children’s home. She is seeking compensation from the diocese on the basis that because the priest was engaged to work in the Portsmouth diocese, it was vicariously liable for his behaviour. The issue turns on the relationship between Father Baldwin and the diocese. The diocese’s position is that a priest is not an employee. As the judge in JGE noted, there are certainly features of Father Baldwin’s position with the diocese which distinguish it from normal employment. There was no written contract; there was no formal supervision; Father Baldwin was not paid by the diocese, but relied on his parish to generate the income to support him; the diocese could not dismiss him, this could only be done by Rome; and the Inland Revenue treated Father Baldwin as an office holder, not an employee. However, and as the church conceded, there are many English case law authorities which confirm that a formal contract of employment is not a prerequisite for the imposition of vicarious liability. As the Court of Appeal explained in Viasystems (Tyneside) Ltd v Thermal Transfer Ltd [2005] EWCA Civ 1151, [2005] 4 All ER1181 the issue is control: who has control over the actions of the person who is committing the wrongful act? Moreover, while the point in JGE had not previously been decided by the English courts, an identical point had been considered by the Canadian courts. In Doe v Bennet (2004), the Canadian Supreme Court held that a Catholic bishop was vicariously liable for the actions of a paedophile priest. Whether or not the bishop and the priest had an “employment contract” in the strict legal sense was beside the point. The bishop exercised control over the priest and therefore they had a relationship “akin to that of employment”. Therefore, it was fair and just to impose vicarious liability on the bishop. Applying these cases, Mr Justice McDuff held that the diocese could be vicariously liable for the actions of Father Baldwin: “By appointing Father Baldwin as a priest, and thus clothing him with all the powers involved, the defendants created a risk of harm to others, viz the risk that he could abuse or misuse his powers for his own purposes.” The diocese has been given permission to appeal to the Court of Appeal, so the issue is not yet finally resolved. The Bishop of Portsmouth has attacked the ruling, claiming that it is wrong that “a bishop should be automatically liable for the actions of a priest simply by virtue of the fact that he or one of his predecessors appointed the priest. The diocese is aware of no other organization which can be held liable for the actions of its office holders in this way” (quoted in The Guardian, 15 November 2011). However, this reaction is based on a fundamental misunderstanding of how the doctrine of vicarious liability works and how it has developed both in the UK and in Canada. If anything, by seeking to evade abuse claims on the basis of the legal peculiarities of the position of priest, the Catholic Church is seeking immunity in respect of the actions of the people who work for it granted to no other organisation. This seems an unattractive argument, especially for an organisation which has had an endemic problem of child abuse and which publicly professes to be determined to deal with it. However, as disclosures of abuse in the Catholic Church show no signs of abating, and with claims continuing in large numbers, it seems that the Church has decided to fight to the last ditch to avoid paying further compensation to victims. It seems probable that the Court of Appeal will have to revisit the issues in JGE before very long.
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