Butterworth's: Vicarious Liability of an Employer

Russell Jones and Walker
January 4, 2012

http://www.rjw.co.uk/latest-news/article/butterworths-vicarious-liability-of-an-employer/3103/

Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church

2010 [EWCA] Civ 256

Unfortunately, in recent years, those cases involving vicarious liability which have reached the higher courts have had a sinister aspect to them. The oft cited examples of employees throwing snowballs or taking part in pranks, which ultimately injure one of their colleagues, have been replaced by shootings, significant fraud and, most recently, child abuse.

In Lister v Hesley Hall Limited [2002] 1 AC 215, a warden sexually assaulted those in his care at a school boarding house. The House of Lords (Lord Steyne giving the lead judgement) held the school vicariously liable for the warden's actions. The foundation on which the decision was based was the "relative closeness of the connection between the nature of the employment and the particular tort". In relation to the specific facts, Lord Millet stated that the employee "did not merely take advantage of the opportunity which his employment gave him, but he abused the special position". Without the job title and the role that went with it the warden would not have had the opportunity to abuse the children.

The same approach applied in the decision of their Lordships in Dubai Aluminium Company Limited v Salaam [2003] 2AC366 in which a partner in a law firm defrauded the claimant company. He would not have been able to do so without the responsibility given to him as their solicitor to act on their case.

Most bizarrely, but no less serious, was the case of Barnard v the Attorney General of Jamaica in which the Privy Council heard a case in which a member of the public was using a public phone when a police officer, employed by the defendant, asked to let him use the phone. There was nothing about him which identified him as a police officer other than his statement "police". When Mr Barnard didn't hand over the phone the officer slapped him on the hand and shoved him in the chest. Unfortunately for Mr Barnard, he still didn't let the officer have the phone so he stepped back 2 steps, drew his service revolver, pointed it at the claimant and shot him in the head. Fortuitously for Mr Barnard, he didn't die. If the facts aren't strange enough the officer then proceeded to attempt to arrest Mr Barnard when he was in hospital being treated for the gun shot wound. The Privy Council held that the defendants were responsible because the claimant was shot with a revolver provided by them and the attempt to arrest simply underlined the fact that the officer viewed the action within the context of his employment.

The senior judiciary had, therefore, on a number of occasions made it clear that it would be extremely difficult for an employer to avoid vicarious liability for the actions of an employee if those actions were closely linked to the nature of the employment. It is, therefore, with some astonishment and derision that one reads of the defence of the case of Mr Maga by the Roman Catholic Church.

The Facts

The claimant was sexually abused by the defendants' agent, Father Clonan who, between 1972 and 1992, was not only a priest but an active and promiscuous sexual abuser of boys.

The claimant himself had learning difficulties (an IQ of around 70) and suffered from epilepsy. He was not a Roman Catholic or connected with the Church. The abuse commenced after a conversation when the claimant was admiring the priest's motor car, a Triumph Stag. The priest invited the claimant to attend a church disco. The relationship developed to the extent that he paid the claimant for cleaning his car, doing small jobs in the presbytery and ironing his clothes. The priest did not attempt to engage with the claimant on any religious level, but this of course was not his real purpose in the association. Most of the abuse seems to have occurred within the presbytery in which the priest resided.

The defendants, despite accepting that the priest had abused a number of young boys, defended this particular case on the basis that the claimant was not a catholic, he was not an altar boy and he had nothing to do with the Church. If ever there was an artificially constructed defence to a legal claim, one suspects this is it. Fortunately, the Court of Appeal did not accept the defence, noting the following:

1. When the priest met the boy he was normally dressed as a priest.

2. The role of a priest involves "trust and responsibility". Indeed!

3. In a sense, a priest is never "off duty".

4. A priest is obligated to try to also communicate with non-Roman Catholics.

5. The priest had special responsibility for youth work at the church which gave him the opportunity of inviting the claimant to a disco on church premises.

6. The incidents of abuse largely took place on church premises and, in particular, in rooms in the presbytery.

Whilst the Appeal Court accepted that the claimant's case was weaker than that in Lister for the reasons stated within the defence, they still found in his favour. In making their decision, the Court considered the Lister case, but also Jacobi [1999] 174 DLR, a decision of the Canadian Supreme Court, which stated 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".

The Court there identified 5 key factors, namely:

a) The "opportunity afforded" to abuse power.

b) The "extent to which" the abuse of the claimant may have furthered the defendant's aims.

c) "The extent to which the sexual abuse was related to … intimacy inherent" in the functions of the church.

d) "The extent of the power conferred on the priest in relation to the claimant".

e) The vulnerability of potential victims to the wrongful exercise of power.

The Appeal Court found all but b) firmly applied in this case and these factors built on the "power or dependency relationship" referred to by McLachlin J in Bazley v Curry 174DLR, another Canadian case.

Smith LJ stated that all cases of this type will be "fact sensitive", but "if those legitimate purposes clothe the priest or pastor with the ostensible authority to create situations which the priest or pastor can and does then subvert for the purposes of abuse, I see no reason why that church should not be vicariously liable for the abuse".

The decision simply follows that of the House of Lords in Lister and other cases heard by the higher courts since 2002. Whilst cases may be "fact sensitive", the manner in which a church organisation sought to defend the abuse of a youngster by one of its employees is unpalatable. One would have thought it was perfectly clear that an employee who dresses as a priest, who has a link with a child because of that position and who invites that child to church discos and to perform work within the priest's accommodation, could not in any way be disguised as anything other than "closely connected" to his employment. How could such a situation be defended?