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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256 (16 March 2010)
Cite as:  EWCA Civ 256,  WLR 1441,  1 WLR 1441,  PTSR 1618
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Mr Justice Jack
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LADY JUSTICE SMITH
| MAGA (by his Litigation Friend, THE OFFICIAL SOLICITOR TO THE SENIOR COURTS)
|- and -
|THE TRUSTEES OF THE BIRMINGHAM ARCHDIOCESE OF THE ROMAN CATHOLIC CHURCH
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Edward Faulks QC and Mr Nicholas Fewtrell (instructed by Hill Dickinson) for the Respondent
Hearing dates : 15 & 16 February 2010
Crown Copyright ©
Lord Neuberger MR:
i) (a) The claim was not time-barred, as the claimant was, and had at all times been, under a disability for the purposes of section 28(1) of the Limitation Act 1980;
(b) If the claimant could not rely on section 28(1), then his claim was nonetheless not time-barred by virtue of section 11 of the 1980 Act;
(c) If the claimant could not rely on section 11, the court would exercise its jurisdiction to extend time under section 33 of the 1980 Act;
ii) The claimant had been sexually abused by Father Clonan substantially as he alleged;
iii) The Archdiocese was not vicariously liable for the sexual abuse perpetrated on the claimant by Father Clonan;
iv) (a) The father of M (an altar server at the Church), reported to another priest, Father McTernan, that Father Clonan had sexually abused M;
(b) Father McTernan, and thus the Archdiocese, had been negligent in not taking that report further;
(c) However, the Archdiocese owed the claimant no duty to take these reports further;
v) Although the claimant's claim against the Archdiocese accordingly failed, the Judge sensibly went on to assess damages: he would have awarded £17,500 general damages, and £15,000 for loss of earnings.
The factual background
The Judge's decision that the claimant's claims were not time-barred
Section 28(1) of the Limitation Act 1980
Sections 11 and 33 of the Limitation Act 1980
The Judge's finding that the claimant was sexually abused by Father Clonan
The Judge's conclusion that the Archdiocese was not vicariously liable
The Judge's dismissal of the breach of duty claim against the Archdiocese
Did M's parents complain to Father McTernan of M having been sexually abused?
What ought Father McTernan to have done, and what would have been its effect?
Did the Archdiocese owe a duty of care to the claimant?
Lord Justice Longmore:
i) a wrongful act authorised by the master, or
ii) a wrongful and unauthorised mode of doing some act authorised by the master.
This court had concluded that, if an abuser avails himself of the opportunity of being in a bedroom with a child to commit acts of sexual abuse, that was not an unauthorised mode of carrying out his duties but a complete negation of such duty.
"provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them."
The House then held that the acts of the housemaster were indeed so connected with what he was authorised to do that the owners of the school were vicariously liable for them. Each member of the committee thought it important that the employer had undertaken to care for the boys and had performed that duty through the services of Mr Grain or had entrusted him with their care. There was therefore, the necessary close connection, see Lord Steyn at 227C, 229H and 230C, Lord Clyde at 237H, Lord Hobhouse of Woodborough at 238F and 239E and Lord Millett at 250A-B.
"In summary, the test for vicarious liability for an employee's sexual abuse of a client should focus on whether the employer's enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability – fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee's specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercise of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing."
This exposition of the law is highly relevant to the position of Father Clonan in respect of whom there undoubtedly existed a "power or dependency relationship" with the claimant arising from his position as a priest.
"It may be thought that in many of the cases mentioned above, the employer's enterprise had created a "risk" that went beyond the mere creation of an initial opportunity for the assailant to encounter his victims, yet vicarious liability was denied. In terms of the Children's Foundation analysis, the courts were not persuaded that the connection between the job-creating enterprise and the sexual assault was sufficiently close or "strong" to impose no-fault liability on the employer. The result has been otherwise, and the employer held vicariously liable, in cases where the "strong connection" was enhanced by a combination of job-created power and job-created intimacy. Power and intimacy, of course, are hallmarks of a parenting relationship. It was the job-created parent-like relationship that attracted vicarious liability in Children's Foundation"
"The close-connection test is both well established by authority and practical in its content. It is essentially focused on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability."
This in entirely consistent with the approach of English Courts and for the reasons I have given I would endorse it and hold that the Archdiocese should be vicariously liable for Father Clonan's abuse of the claimant.
Lady Justice Smith: