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||Neutral Citation Number:  EWCA Civ 256
||Case No: B3/2009/1049
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Mr Justice Jack
 EWHC 780 (QB)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MASTER OF THE ROLLS
LORD JUSTICE LONGMORE
LADY JUSTICE SMITH
(Transcript of the Handed Down Judgment of
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Miss Elizabeth-Anne Gumbel QC and Mr Justin Levinson (instructed by Clifton Ingram) for the Appellant
Mr Edward Faulks QC and Mr Nicholas Fewtrell (instructed by Hill Dickinson) for the Respondent
Hearing dates : 15 & 16 February 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Neuberger MR:
- There are before the court an appeal and a cross-appeal arising out of proceedings brought by the claimant, known as Mr Maga, by the Official Solicitor as his litigation friend, against the Trustees of the Birmingham Archdiocese of the Roman Catholic Church ("the Archdiocese"). His claim was for damages for sexual abuse to which he claims to have been subjected in 1975 and 1976, when he was aged 12 or 13, by a priest called Father Clonan. The claim was heard by Jack J, who, after hearing evidence and arguments between 16th and 20th March 2009, gave a full judgment dismissing the claim on 22nd April 2009 -  EWHC 780 (QB).
- In that judgment, the Judge reached the following conclusions:
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 claimant appeals against the dismissal of his claim, contending that the Judge was wrong to hold that the Archdiocese was not vicariously liable for Father Clonan's sexual abuse of the claimant, and/or that the Archdiocese, through Father McTernan, was in breach of its duty of care to the claimant in not taking the reports of sexual abuse further – i.e. on points (iii) and (iv)(c) above. The Archdiocese cross-appeals, contending that the Judge was wrong to hold the claim was not time-barred, that he was wrong to find that the claimant had been sexually abused by Father Clonan, and that he was wrong to find that there had been reports to Father McTernan, and to conclude that the Archdiocese had been negligent – i.e. on points (i), (ii), and (iv)(a) and (b) above. Thus, the only major issue decided by the Judge which is not challenged on appeal is quantum – i.e. issue (v).
- I propose first to set out the basic facts and findings, which were agreed, not challenged, or determined by the Judge, and then to consider the issues in what appears to me to be the appropriate sequence, namely that set out in paragraph 2 above.
The factual background
- The two main participants in the events giving rise to these proceedings are Father Clonan, who took no part whatever in the hearing, and the claimant, who brought the claim and gave evidence.
- Father Clonan was, on any view, an unusual priest. In 1972, a few months after he had been ordained, when he was 30, he started work as one of the priests at the Church of Christ the King in Coventry ("the Church"). He was very energetic, and took on various responsibilities particularly when it came to the young. For instance, he started a disco, a social club, and other clubs, for the young, and he ran a number of football teams. He decided, and obtained consent from the Archdiocese, to construct a community centre ("the centre") in the curtilage of the Church. His father owned and ran a successful building company, and Father Clonan himself ran a construction business, which carried out, or at least supervised, this, and indeed other, work for the Church, and, indeed, for other churches in the Archdiocese. He was relatively well off, and appears to have owned at least two houses in the Coventry area. He also always had at least one sports car. He was pretty liberal with his money, especially when it came to paying boys for "odd jobs ... around the Church, for cleaning his car or for brushing the snooker table" in the social club, to quote from the evidence of Simon Grey, who was one of the boys with whom Father Clonan associated.
- I use that rather neutral expression because it is clear that, in addition to all the other characteristics just described, Father Clonan was also sexually attracted to boys. Unfortunately, indeed, disgracefully, he gave in to that attraction and appears to have been an active and promiscuous sexual abuser of boys. At least one boy, Simon Grey, appears to have been sexually abused by Father Clonan over a period as long as eight years, the abuse including buggery. At the other extreme, it seems that other boys, such as M, had their genitals caressed by Father Clonan on one or two occasions. Father Clonan remained working at the Church until 1992, when he left very suddenly; it quickly became clear that he had left because his sexual abuse of boys was about to become public. He initially went to Ireland, but, despite attempts to locate him, Father Clonan's trail went cold in Australia, where it appears that his mother and sister lived, and where it is possible that he has now died.
- For the twenty or so years while he was at the Church, Father Clonan lived in the presbytery, a building within the curtilage of the Church, which housed at least two other priests. One of those other priests was Father McTernan, who had been ordained in 1942, and was the priest in charge. He appears to have suffered from poor health since 1979, and seems to have left most of the work of the Church to Father Clonan, who, he said in a statement to the police, had turned the club into "a resounding success". Father McTernan was still living in the presbytery in 1992, when he was telephoned, out of the blue from his perspective at least, by Father Clonan, who was, he said, "in some considerable distress", and apologised "for leaving [the Church] in the lurch". That was the last that anyone at the Church, or (I think) the Archdiocese, appears to have heard of Father Clonan. Father McTernan died in 1996, so his evidence was taken from his statement to the police in connection with their investigation of Father Clonan's activities.
- The claimant was born prematurely in October 1963, and the following month he was diagnosed as suffering from narrowing of the larynx, which led to anoxia, which in turn caused permanent brain damage. Apart from having learning difficulties (his IQ is thought to be around 70), he also suffers from epilepsy. Until the death of his father, the claimant lived with his parents within the parish of the Church, but they were not Roman Catholics. In May 1976, his father died, and the claimant, who was described then as being "out of control", moved to the Three Spires School in Devon; a year later, he was moved to Pitt House School, also in Devon.
- The claimant says that he was sexually abused at those schools, and the Judge accepted that such abuse occurred, at least at Pitt House School. The sexual abuse of which the claimant complains in these proceedings took place before he went to these schools. Because his evidence was not particularly clear or consistent, and at times incoherent, it is not quite clear precisely over what period that alleged abuse occurred, but it seems to have been in 1975 and 1976. The Judge's findings as to the nature of the relationship between Father Clonan and the claimant are in paragraphs 88 to 91 of his judgment, and can be summarised as follows.
- According to the claimant's evidence, as accepted by the Judge, his relationship with Father Clonan started when they met while he was admiring Father Clonan's car, a Triumph Stag. They got talking and Father Clonan invited the claimant to attend the church disco, which he did on a number of occasions; the discos were open to all young people in the area, whether or not they were Roman Catholics. As the discos were for those aged around 12, they tended to end early and Father Clonan used to ask the claimant to help clear up, which he did. Shortly after this had started, "Father Clonan paid the claimant for doing jobs such as cleaning [his] car or doing small jobs in the presbytery" (paragraph 88 of the judgment). This work seems to have included cleaning the presbytery and ironing Father Clonan's clothes. The claimant did work in the Church on one occasion only. The claimant also went with Father Clonan to visit a house (or possibly more than one house) owned by Father Clonan in order to help clean it.
- On the personal side, Father Clonan "did not involve the claimant in the activities of the church itself ... and did not seek to engage with him on any religious level", not least because his "real purpose in the association was the sexual abuse of the claimant", and indeed he "cultivated the claimant for that purpose". The Judge concluded that although "[t]he claimant's evidence as to the specifics of the abuse was unsatisfactory", he was sexually abused by Father Clonan on many occasions. The abuse as found by the Judge included Father Clonan feeling the claimant's genitals, masturbating the claimant, making the claimant give him oral sex, and indulging in mutual genital contact; the Judge felt unable to determine whether Father Clonan had actually buggered the claimant.
- It seems clear from the claimant's witness statement that he was first abused by Father Clonan in the latter's room in the presbytery, and that many, indeed I suspect most, of the abuse occurred in the presbytery, although no express finding was made to that effect by the Judge. However, as that is what the claimant appears to have said, as the Judge generally accepted his evidence about the abuse he suffered, and as it does not appear unlikely, I believe that it is a fair inference. Nonetheless, on at least one occasion, Father Clonan abused the claimant in one of his houses, and on at least one other occasion, he abused him in one of his cars. The period over which the abuse took place was, as already mentioned unclear, but the Judge concluded that it was between six months and a year in 1975 and/or 1976 – paragraph 91 of the judgment. The Judge also accepted (in paragraph 57) the claimant complained once about his sexual abuse to Father McTernan, whose reaction was simply to say: "Don't be so silly; I will tell your mother you are playing up."
- The claimant was interviewed by the police in November 2000 about his treatment at Pitt House School, but not in connection with his treatment by Father Clonan. Indeed, it appears from his evidence that the first time that he appreciated that he might have some complaint in that connection was in October 2003, when he saw a television programme, in which it was reported that Simon Grey had recovered damages from the Archdiocese as a result of his having been sexually abused by Father Clonan. He also learnt from that programme that a complaint about Father Clonan's sexually abusing boys had apparently been made to Father McTernan as long ago as 1974. The claimant discussed this programme with his social worker, who took him to visit the police; they put him in touch with his present solicitors, who had acted for Simon Grey. A letter of claim was sent to the Archdiocese only at the end of July 2006, and these proceedings were started some eight weeks later.
- At the trial, oral evidence was given by the claimant himself, and by Monsignor Moran, who was, and had been since 1998, Vicar-General of the Archdiocese. Also admitted into evidence were the witness statements given to the police of Father McTernan (as already referred to) and of M and his parents (because of the complaint allegedly made to Father McTernan in 1974). Evidence concerning the claimant's mental capacity was give by Dr Shapero (called by the claimant) and Professor Murphy (called by the Archdiocese). The conclusions reached by the Judge are summarised above in paragraph 2, and I now turn to consider those conclusions, and the attacks that have been made against them.
The Judge's decision that the claimant's claims were not time-barred
Section 28(1) of the Limitation Act 1980
- Section 28(1) of the Limitation Act 1980 provides that, if on the date on which a cause of action accrues, a person is "under a disability", the action may be brought at any time up to six years after he ceases to be under a disability. Section 38(2) defines under a disability as meaning being an infant or "of unsound mind". At the relevant time for present purposes, section 38(3) provided that a person is of unsound mind "if he is a person who, by reason of mental disorder, is incapable of managing and administering his property and affairs"; it went on to explain that "'mental disorder' has the same meaning as in the Mental Health Act 1983". (The Mental Capacity Act 2005 replaced the central part of the definition in section 38(2) with "if he lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings"; and section 38(3) was repealed, as "lacking capacity" was itself defined in section 2(1) of the 2005 Act.)
- In order to decide whether the claimant could rely on section 28(1), the Judge obtained guidance as to the appropriate approach to adopt from two decisions of this court, Kirby v Leather  2 QB 367 and Masterman-Lister v Brutton  1 WLR 1511, as well as from two first instance decisions, White v Fell, unreported, 12 November 1987 and Lindsay v Wood  EWHC 2895. He concluded that, at least in the present case, he needed to consider only one question, namely whether the claimant was able to conduct the instant proceedings, in the sense of being "able to deal rationally with the problems which ... will arise in the course of it", as, if he was not, it was common ground that his inability was by reason of mental disorder (paragraphs 28 and 53 of the judgment).
- There is some doubt in my mind whether this was precisely the right formulation, but I do not think that it would be right to go into that question. Miss Gumbel QC, who appeared for the claimant, as she does on this appeal, was recorded by the Judge as identifying "the issue [as] the claimant's ability to conduct the litigation"; and Mr Faulks QC, who also appears here as he did below, was quoted by the Judge as saying that there was no difference in practice in this case between the two issues, which he propounded, namely capacity to conduct proceedings and capacity to commence proceedings. (The discussion is in paragraph 27 of the judgment). As the parties were agreed that this was the issue, and as that was the approach the Judge adopted, it seems to me that, as there are no exceptional facts to justify an appellate court taking a different approach, we should not consider determining a reformulated issue on this appeal – not least because I am far from convinced that the Judge adopted the wrong formulation.
- Having identified the issue, the Judge then considered whether the claimant, on whom the burden lay, had established that he could not deal rationally with the problems which would arise in this litigation. He first considered the claimant as a witness. He said that the claimant had difficulties in understanding contradictions and in giving evidence generally, concluding that "his evidence suggests a considerable intellectual disadvantage" (paragraph 30). He then turned to the claimant's history and referred to the fact that the claimant had settled a road traffic accident claim at the first figure offered, and then had given the £2,500 to a moneylender simply "because he was being pressed" and even though he did not know how much he owed (paragraph 32). The Judge also said that the claimant's psychiatric notes suggested that he was inconsistent as to whether he wanted to manage his own affairs (paragraph 34) and that two psychiatrists were recorded as independently noting that he needed help with his finances (paragraph 35). In connection with the appointment of the Official Solicitor as his litigation friend, his GP had recorded that the claimant could not read or write, and needed looking after (paragraph 38).
- The Judge then considered the evidence of the expert witnesses in paragraphs 40 to 48. The statements prepared before the hearing presented a somewhat unsatisfactory picture because Dr Shapero and Professor Murphy did not appear to have addressed the precise question which the Judge identified as having to be decided, and because their understanding of the question which required answering seems to have changed, so that their answers at different times appeared mutually inconsistent. As a result of their cross-examination, it appears that, when faced with what the Judge had identified as the correct question, Dr Shapero thought that the claimant could not conduct the litigation, whereas Professor Murphy thought he could.
- In paragraph 51, the Judge said that he did not find the issue of capacity "straightforward". This is underlined by the fact that the Judge changed his mind on this issue between the circulation of his draft judgment and the handing down of the final version. In my judgment, the fact that a Judge changes his mind, particularly on a difficult issue such as the claimant's capacity in this case, suggests that he has given the issue really serious consideration. I accept, however, that it also can be said, as Mr Faulks argues, to indicate that the case is near the borderline, and therefore may merit particularly careful scrutiny on an appeal.
- In paragraph 52, the Judge said that he had to take into account "what he knew about the claimant's abilities from the evidence I have heard about his life", "the expert evidence", and "the impression the claimant made on me, bearing in mind the conditions". In paragraph 53, he reached the conclusion that the claimant lacked capacity under section 38(2) of the 1980 Act. He said that he considered that this conclusion was "supported by the aspects of the history" set out in the judgment, and "the concern which I would have if it were the claimant who was responsible for making the decisions in the litigation rather than the Official Solicitor". He also said that "in the end, I prefer Dr Shapero's view on this to that of Professor Murphy".
- Mr Faulks, for the Archdiocese, contends that the Judge reached the wrong conclusion on section 28(1) for a number of reasons – (a) failing to take into account the claimant's manipulative ability, (b) failing to allow sufficiently for the privilege which incapacity confers in the limitation context, (c) accepting Dr Shapero's final view when it was against the weight of the expert evidence, (d) the claimant's ability to understand that he might recover a large sum; (e) the fact that the claimant had previously brought a claim, apparently without a litigation friend; (f) the fact that his solicitor had certified that the claimant understood the contents of his witness statement, (g) the fact that he had his own bank account and could remember his pin number, (h) the fact that the claimant could understand concepts such as confidentiality and legal advice, (i) the fact that he understood, and expressed views about, the function of the Court of Protection, and (j)the fact that he had taken part in a radio interview where he had referred to "making a civil claim against the Catholic church".
- As to (a), the Judge accepted in paragraph 37 of his judgment, and obviously took into account, that the claimant was manipulative; how he took it into account was very much a matter for him. (b) It is true that a person who can bring himself within section 38(2) of the 1980 Act on a permanent basis is given a very great advantage, but that is a matter for the legislature not the courts, save that it serves to emphasise the care which has to be applied when deciding the issue.
- The expert evidence, raised under (c), was, as already mentioned, somewhat confused, and it seems quite likely that neither expert was entirely consistent in his opinion, which is not an adverse criticism: I suspect that the inconsistencies are attributable partly to the changing nature of the question put to them, and partly to the difficulty of resolving the issue in this case. However, in the end, each expert expressed a view on the issue which the Judge had to decide; although there were good reasons for doubting Dr Shapero's ultimate view, there were also good reasons for doubting Professor Murphy's ultimate view. Further, the recorded views of the psychiatrists who had cared for the claimant, and indeed those of his GP, seem to support the Judge's conclusion
- As to (d), the claimant cannot possibly have been told that he would recover £750,000 which is what he was recorded as saying that he had been advised, so, at best, that factor cuts both ways. Similarly, the evidence relating to the road traffic accident claim, (e), at best cuts both ways from the Archdiocese's point of view, as the Judge said in paragraph 50. The claimant was able to bring an action, through Claims Direct with the help of the Citizens' Advice Bureau, but the way he dealt with the offer and the proceeds tends to support the Judge's conclusion. I do not think (f) takes matters further: much more important was the Judge's ability to see the claimant as he gave evidence. (g) is more than outweighed by the fact that the claimant could not manage his finances, despite the fact that they are handled by Social Services. As to (h), (i) and (j), consideration of the whole of the evidence in relation to each item appears to me to provide some support for each side. Thus, the transcript of the radio interview suggests that the claimant confused the abuse perpetrated by Father Clonan with that he suffered subsequently at school.
- The Judge set out the relevant evidence on the section 28(1) issue fully and helpfully, including almost all the points which are now relied on by the Archdiocese. However, it would have been better if he had spent a little more time explaining why he came to the conclusion that he did; in particular why he preferred the evidence of Dr Shapero to that of Professor Murphy. Nonetheless, it is quite possible to discern his reasons, at least in general terms, for reaching his conclusion. The difficulty involved in, and the effort that he gave to, deciding the issue may well have resulted in the Judge concentrating more on reaching a conclusion than spelling out his reasons, which is understandable. Further, this is very far from being a case where no reasons have been given for the Judge's conclusion.
- As the Judge indicated, this was very much of a borderline case on the question of whether section 28(1) applied. The issue is certainly not one of discretion; nor is it an issue of primary fact. It is a matter of judgment, and one which is primarily for the first instance tribunal. There may, in an Aristotelian sense, be only one right answer to the question whether a claimant was able to conduct the litigation, but in this imperfect world, it must, in some cases, be an issue on which reasonable and fully informed Judges could differ. In such cases, and this is, in my view, such a one, an appellate court should not interfere with the Judge's conclusion unless he has relied on irrelevant evidence, ignored relevant evidence, or misunderstood some evidence. I do not consider that Jack J has committed any such oversight in this case. Accordingly, I would dismiss the Archdiocese's cross-appeal on this issue.
Sections 11 and 33 of the Limitation Act 1980
- In these circumstances, it is unnecessary to consider whether the Judge was right in concluding that the claimant should succeed on the other two grounds in the Limitation Act 1980, which he relied on.
The Judge's finding that the claimant was sexually abused by Father Clonan
- The Judge, as I have explained, essentially accepted the claimant's evidence as to the occurrence and extent of the abuse perpetrated on him by Father Clonan. On behalf of the Archdiocese, Mr Faulks contends that the claimant was such an unreliable witness, with so many inconsistencies in his evidence, and the lapse of time was so great, that the Judge was wrong to accept his testimony.
- This submission faces an uphill task, at least on the face of it, as there was undoubtedly evidence, in the form of the claimant's witness statement, and in much of what he said in cross-examination, to support the Judge's conclusion. As has been said on many occasions, the Court of Appeal is, in principle, very reluctant to interfere with a trial judge's findings of fact, although it will do so if satisfied that the judge reached a conclusion which could not fairly be supported on the evidence before him.
- It is fair to say that there are reasons for doubting the claimant's evidence that he was abused by Father Clonan. He only came forward with any such suggestion after seeing the television programme to which I have referred: it could obviously have suggested to a manipulative man, who had, as a boy, come across Father Clonan, that there was an opportunity to make money by making up such evidence. He had made a detailed statement to the police about being abused at Pitt House School, and, while he had no reason to mention in that statement abuse he had suffered from Father Clonan, the abuse he suffered at school could well have reinforced the idea of claiming to have been abused by Father Clonan. Further, given that the burden was on the claimant to establish abuse, the long passage of time since it allegedly had occurred was a factor to be taken into account against him.
- The Judge was well aware of these factors, which he identified in paragraphs 59, 68, and 85, and in the latter paragraph he described the evidence of Dr Shapero and Professor Murphy in connection with the claimant's reliability as "helpful". In deciding to believe the claimant, he was influenced by the fact that some of the unlikely aspects of his story, such as receiving relatively large sums of money from Father Clonan, and the fact that Father Clonan owned houses in the area, appeared, on the basis of other evidence which was unlikely to have come to the attention of the claimant, to be true – paragraph 88. The Judge also said, in paragraph 89, that two statements which the claimant said had been made to him by Father Clonan, and the way in which they were said to have been made, had "the ring of truth".
- In addition, of course, it appears clear that there were a number of boys who had been abused by Father Clonan. That is not a point which should be taken too far, either in general, as is embodied in the adage that one should not give a dog a bad name and then hang him, or on the facts of this case, as the fact that many boys were abused by Father Clonan can also be invoked, as it has been, to support the notion that the claimant fabricated his evidence. Nonetheless, it seems clear that the claimant met Father Clonan, and indeed Father McTernan, and that he attended the discos, and did work at the request of Father Clonan at least on his car and in the community centre, and, bearing in mind that Father Clonan appears to have been a predatory sexual abuser of boys, it is, regrettably, not unlikely that the claimant's evidence on this aspect was true.
- In all the circumstances, it seems to me that the Judge's careful analysis of the evidence relating to the claimant's sexual abuse at the hands of Father Clonan, and the conclusion he arrived at, cannot be faulted. I would therefore dismiss the Archdiocese's cross-appeal on this issue.
The Judge's conclusion that the Archdiocese was not vicariously liable
- The first way in which Ms Gumbel puts the claimant's case against the Archdiocese is on the basis of vicarious liability; in other words, she says that, irrespective of whether the Archdiocese acted in any blameworthy way or not, it is responsible for the wrongful acts complained of in this case, namely the sexual abuse perpetrated on the claimant by Father Clonan. The Archdiocese accepts that Father Clonan should be treated as its employee for the purposes of this case, but Mr Faulks emphasises that this should not be taken as a general admission that a priest is, or is in the same position as, an employee, of the Archdiocese. His argument, which succeeded below, is that, even if Father Clonan is treated as its employee, the Archdiocese should not, as a matter of law, be vicariously liable for his abuse of the claimant.
- The law on this topic has been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd  1 AC 215. In that case, a company which owned and ran a school was held liable to a pupil in a boarding house, who was sexually abused by the person employed by the company as the warden of the house. The case disposed of the argument, previously promulgated by this court in Trotman v North Yorkshire County Council  LGR 584, that no vicarious liability could attach in such a case as sexually abusing pupils was not a mode, even an unauthorised mode, of carrying out the employee's duties.
- At  1 AC 215, paragraph 28, Lord Steyn, with whom Lord Hutton agreed, said that the correct test was "whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable". Having said that the issue turned on whether the acts were "within the scope of the employment" and that "a broad approach should be adopted" when "considering the scope of the employment", Lord Clyde went on to say that "while consideration of the time at which and the place at which the actings occurred will always be relevant, they may not be conclusive", and that "while the employment enables the employee to be present ..., the opportunity of being present ... does not necessarily mean that the act is necessarily within the scope of the employment" –  1 AC 215, paragraphs 42, 44 and 45).
- Lord Hobhouse of Woodborough adopted a somewhat different approach, concentrating more on the nature of the duty owed by the school-owning company to the claimant, and then treating that duty as delegated, or entrusted, to the warden –  1 AC 215, paragraph 55. Lord Millett, at  1 AC 215, paragraph 70, said that the "critical" point was "the closeness of the connection between the employee's duties and his wrongdoing". However, also echoing Lord Hobhouse, he went on to say that the warden "did not merely take advantage of the opportunity which [his] employment ... gave him" but "abused the special position in which the school had placed him to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys" -  1 AC 215, paragraph 82.
- The majority of the committee considered that the approach to the issue of vicarious liability adopted by the Supreme Court of Canada in two cases involving sexual abuse of children, Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71, was correct and helpful – see  1 AC 215, paragraphs 27, 48, and 52.
- In the subsequent case of Bernard v Attorney General of Jamaica  UKPC 47, paragraph 18, the view expressed by the Judicial Committee, through Lord Steyn, was that the test laid down in Lister  1 AC 215, paragraph 28 "was based on a line of decisions of high authority dating from Lloyd v Grace, Smith & Co  AC 716 where vicarious liability was found established in cases of intentional wrongs. Lister ... emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor's employment." At  UKPC 47, paragraph 19, the Privy Council then cited with approval Lord Nicholls of Birkenhead's "best general answer" in Dubai Aluminium Co Ltd v Salaam  UKHL 48,  2 AC 366, paragraph 23, namely that "the wrongful conduct must be so closely connected with acts the ... employee was authorised to do that, for the purpose of the liability of the ... employer to third parties, the wrongful conduct may fairly and properly be regarded as done ... in the ordinary course of ... the employee's employment."
- In this case, the Judge accepted, in paragraph 100, that youth work was part of Father Clonan's employment as a priest, and that his position as a priest "gave him the opportunity to abuse the claimant". However, he said, that was "not by itself sufficient" to render the Archdiocese liable. He then went on to state that "Father Clonan's association with the claimant was founded on his use of the claimant to wash his car, do cleaning ... and to iron his clothes", "an employment which was not a priestly activity", and had nothing to do with "draw[ing] the claimant into the activities of the Church". "The association", he said, "was not part of evangelisation". Accordingly the Judge dismissed the claim based on vicarious liability.
- Although I acknowledge the issue is not easy to resolve, I have reached a different conclusion from the Judge. In that connection, while an appellate court should pay proper respect to a finding of this sort by the trial judge, it seems to me that, unlike in relation to the question whether section 28(1) of the 1980 Act applies, the issue, although very much fact-dependant, is ultimately one of law rather than of inference from facts, and, at least in this case, the Judge had no particular advantage over this court by his having seen live witnesses. Further, I consider that there is force in Ms Gumbel's argument that the Judge appears to have erred in principle by focussing on the actual motives of Father Clonan, and placing too much emphasis on the acts of abuse themselves.
- The tortfeasor was a Roman Catholic priest, and the claimant was not a Roman Catholic, and at no time had anything to do with the Church itself (other than doing some cleaning work in the Church once, which I regard as an irrelevant isolated incident). To that extent, the claimant's case is clearly weaker than, or at least distinguishable from, that of the successful claimant in Lister  1 AC 215, or of a Roman Catholic boy, such as M, who worked as an altar server at the Church and was abused by Father Clonan. However, there are a number of factors, which, when taken together, persuade me that there was a sufficiently close connection between Father Clonan's employment as priest at the Church and the abuse which he inflicted on the claimant to render it fair and just to impose vicarious liability for the abuse on his employer, the Archdiocese.
- First, Father Clonan was normally dressed in clerical garb, and was so dressed, when he first met the claimant. At the very least, this factor at least sets the scene. A priest has a special role, which involves trust and responsibility in a more general way even than a teacher, a doctor, or a nurse. He is, in a sense, never off duty; thus, he will normally be dressed in "uniform" in public and not just when at his place of work. So, too, he has a degree of general moral authority which no other role enjoys; hence the title of "Father Chris", by which Father Clonan was habitually known. It was his employment as a priest by the Archdiocese which enabled him, indeed was intended to enable him, to hold himself out as having such a role and such authority.
- Secondly, Father Clonan's functions as a priest included a duty to evangelise, or "to bring the gospel to be known to other people ... Roman Catholics and non-Roman Catholics" to quote from the evidence of Monsignor Moran. As a result he was, as Monsignor Moran also accepted, "obliged to befriend non-Roman Catholics", and "to gain and be worthy of their trust". Accordingly, he was ostensibly performing his duty as a priest employed by the Archdiocese by getting to know the claimant. The fact that he was getting to know the claimant for nefarious reasons is not really in point, any more than it assisted the school in Lister  1 AC 215 that the warden may have been "grooming" the claimant in that case: Father Clonan developed his relationship with the claimant under the cloak, or guise, of performing his pastoral duties.
- Thirdly, given that the claimant was aged 12 or 13 when his association with Father Clonan started, it is significant that Father Clonan was given a special responsibility for youth work at the Church. It underlines the point that, when getting to know, when effectively "grooming", the claimant, Father Clonan was ostensibly carrying out one of his specifically assigned functions in the Church.
- Fourthly, Father Clonan was able to develop, and did develop, his relationship with the claimant by inviting him to a disco which was on Church premises and which he organised as a priest at the Church. Thus, the claimant was drawn in to the relationship through the medium of a Church-organised function carried on in Church premises by Father Clonan, a priest at the Church. Fifthly, the relationship was further developed by Father Clonan getting the claimant to help clear up after discos. There is no evidence that the claimant was paid for this work, but it does appear that this work, on Church premises at the request of a priest at the Church, led to the claimant doing other work for Father Clonan. Thus, Father Clonan's role as priest in the Archdiocese gave him the status and opportunity to draw the claimant further into his sexually abusive orbit by ostensibly respectable means connected with his employment as a priest at the Church.
- It is true that much of the paid work which the claimant subsequently did for Father Clonan (washing his cars and cleaning his houses) was not connected with his priestly role, although it could, to an extent, be said to be ostensibly connected with the evangelising aspect of Father Clonan's job. Sixthly, however, it seems to me that the work which the claimant carried out in the presbytery is of some assistance to his case on vicarious liability. The fact that the claimant was working at the request of a priest on premises owned by the priest's Archdiocese, adjoining the Church where the priest worked, and which were lived in by the priest is relevant to the issue of vicarious liability for the first three reasons to which I have already referred, namely moral authority, evangelisation, and youth work.
- Seventhly, it appears clear that the first incident of sexual abuse, as well as a number of other incidents, against the claimant occurred in Father Clonan's room in the presbytery. It is not merely that the abuse started and continued in the employer's premises where the employee resided because of his employment. It is also that the employee's job, Father Clonan's priestly duty, involved spending time alone with individuals such as the claimant. As Monsignor Moran said, "the normal course of a priest's work" would involve him "spend[ing] some time alone with people who were searching for truth". Again, the fact that Father Clonan was spending time alone with the claimant for illegal sexual purposes is not the point: the opportunity to spend time alone with the claimant, especially in the presbytery, arose from Father Clonan's role as a priest employed as such by the Archdiocese.
- Again, it is true that Father Clonan sexually abused the claimant away from the presbytery, at least once in one of his houses and at least once in a car, but that is scarcely in point. The abuse started in the presbytery and continued there, albeit not exclusively. Anyway, as a priest, Father Clonan could justify and explain why he was alone with the claimant, whether in one of his houses or one of his cars.
- I accept that the court should not be too ready to impose vicarious liability on a defendant. It is, after all, a type of liability for tort which involves no fault on the part of the defendant, and for that reason alone its application should be reasonably circumscribed. Further and more specifically, the deleterious effect on schools, and charities and social clubs aimed at the young, of too readily imposing such liability on employers for sexual abuse of children by their employees was rightly identified by the Canadian Supreme Court in Jacobi (1999) 174 DLR (4th) 71, paragraph 30. Thus, as emphasised in that case, the fact that the opportunity to commit abuse arises as a result of the employment is not enough ((1999) 174 DLR (4th) 71, paragraphs 53-56), but, as I have sought to explain, there was much more here.
- In Jacobi (1999) 174 DLR (4th) 71, paragraph 79, the Canadian Supreme Court suggested 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". It appears to me, for the reasons given, that requirement is satisfied. That view is supported when one turns to the five factors which the court immediately went on to identify as relevant when considering that requirement. As applied to the facts of this case, they are (a) "the opportunity afforded" by the Archdiocese to Father Clonan "to abuse his ... power"; (b) "the extent to which" the sexual abuse of the claimant "may have furthered the [Archdiocese's] aims"; (c) "the extent to which the [sexual abuse] was related to ... intimacy inherent" in the functions of the Archdiocese or the Church; (d) "the extent of the power conferred on [Father Clonan] in relation to the [claimant]"; (e) the vulnerability of potential victims to the wrongful exercise of [Father Clonan's] power". Given his status and functions as a priest, including his evangelising duties, the fact that those functions involved one-to-one meetings, his specific functions in relation to the young, and the apparent absence of any supervision by Father McTernan or anyone else, it seems to me that, of the five factors, four apply to a significant extent. On the basis that it is to be interpreted literally, only (b) does not apply, and it would (one hopes) virtually never apply in a vicarious liability child sex abuse case; if it is meant to refer to the ostensible purpose of the relationship, then (b) is satisfied.
- I have read the judgment in draft of Longmore LJ, and agree with his somewhat more panoptic analysis. Like him, I have found the analysis of McLachlin J in Bazley (1999) 174 DLR (4th) 45, paragraph 46, and of Binnie J in Jacobi (1999) 174 DLR (4th) 71, paragraph 58 of assistance in reaching my conclusion.
- For all these reasons, I consider that, on the facts of this case, the test laid down by Lord Steyn in Lister  1 AC 215, paragraph 28, is satisfied. Father Clonan's sexual abuse of the claimant was "so closely connected with his employment" as a priest at the Church "that it would be fair and just to hold the [Archdiocese] vicariously liable". Accordingly, I would allow the claimant's appeal against the Judge's dismissal of his claim in so far as it is based on vicarious liability.
The Judge's dismissal of the breach of duty claim against the Archdiocese
- The alternative way in which the claimant puts his case against the Archdiocese involves an allegation of wrongdoing on its part, namely failure to take forward complaints which Father McTernan received from M's father in 1974 and/or from the claimant in 1975 or 1976. In this connection, the Archdiocese accepts that, to the extent that Father McTernan was negligent, it is vicariously liable for such negligence. However, it contends that the Judge was wrong to conclude that M's father complained to Father McTernan, or that there was any negligence on Father McTernan's part; it also supports the Judge's finding that there was no duty of care owed to the claimant.
- As the claimant succeeds on vicarious liability, it is unnecessary to consider these issues. However, as the various points have been argued, it is right to deal with them, albeit briefly.
Did M's parents complain to Father McTernan of M having been sexually abused?
- The relevant evidence on this aspect was all in witness statements provided to the police, as Father McTernan had died, M's father was too old and ill to come to court, M's mother had died, and M could not give direct evidence of the complaint to Father McTernan.
- The complaint made by M was, according to his father's statement, that Father Clonan "had lifted [M] up and put his hand down [M's] trousers", although this was a "vague recollection". M's mother's statement recorded her recollection as being that M had said Father Clonan had "fondled him, touched his private parts … on two occasions." M's statement was to the effect that Father Clonan fondled his genitals on a large number of occasions, but that he had only told his parents of two occasions.
- M's father stated that he had then reported this to Father McTernan in M's parents' house. In her statement, M's mother stated that that she recalled M's father visiting Father McTernan to discuss this. M's evidence, in his statement, was that Father McTernan came to the house to discuss it with M's parents, and that "a few days later my mother told me that Father Clonan had denied everything", and that he, M, "stopped being an altar boy from then on."
- I do not regard this evidence as too inconsistent or unreliable for the Judge to have accepted. All three statements are consistent about sexual abuse having occurred and having been reported by M to his parents. The difference between M's father's "vague" recollection that there was one incident and his wife'e evidence (supported by M) that there were two is not substantial or surprising. As for the actual meeting, I suspect it took place at M's home between Father Clonan and M's father. M's evidence that Father Clonan saw both his parents is weakened by the fact that he was not present, and , as to M's mother's evidence, it could well have been that Father McTernan was out when M's father called, and consequently visited M's home, where, as M's father says, the conversation took place.
- It is true that, in his statement, Father McTernan said that he did not recall M's father telling him about any abuse, although he recalled M and his family and he also recalled a couple of other complaints of abuse by Father Clonan. I am prepared to assume that Father McTernan was implying that there had been no such complaint. However, in my view, the Judge was quite entitled to reach the conclusion that he did. It can be said to be inherently more likely that Father McTernan would have forgotten the complaint, or would have pretended that it had not been made to excuse his relative inactivity, than it is that M's father would have made up the discussion. Father McTernan also appears to have received complaints of sexual abuse by Father Clonan in the 1980s, without reporting it to his superiors or the police, which, as Ms Gumbel says, provides some support for the view that M's father's evidence is true.
- In my view, therefore, the Judge was entitled to conclude, as he did, that M had been sexually abused, that he had told his parents, and that his father had complained to Father McTernan. What then happened, according to the Judge (apparently relying on M's statement), is that Father McTernan "spoke to Father Clonan, who must have denied that anything had occurred." In the Judge's view, that was "an inadequate response". The next question is whether that was a finding the Judge was entitled to make, and if so, what would have happened if Father McTernan had done what he ought to have done.
What ought Father McTernan to have done, and what would have been its effect?
- The Judge said, in paragraph 106 of his judgment, that "Father McTernan should have appreciated" that the allegation that Father Clonan had sexually abused M "was a very serious matter, which required to be reported both to the police, so an independent investigation could have been carried out, and to his superiors." At least if M's father's complaint was the first report Father McTernan received that Father Clonan was sexually abusing boys, I am doubtful whether this is a conclusion which the judge was entitled to reach, bearing in mind that it is the historic standards of 1974, rather than the contemporary standards of 2010 which apply.
- In the mid-1970s, an allegation by one boy that a priest had fondled his genitals should plainly not have been simply dismissed, but it would not have been treated nearly as seriously then as it would be now. As Lady Hale said in A v Hoare  AC 844, paragraph 54, "until the 1970s people were reluctant to believe that child sex abuse took place at all." In my view, Father McTernan would have been acting properly, according to the standards of the time, if he had taken the allegation up with Father Clonan and, provided that he was given a convincing denial, he then took the matter no further either in the Archdiocese or through the police. The alleged abuse, though serious, was not of the grossest type, and such allegations are all too easy to make, and if they are passed on and investigated, they can cause considerable damage to the person against whom they were made and to the institution for which he works. By the standards of 1974, such considerations could reasonably have been accorded greater weight than they would today. I appreciate that Monsignor Moran said in his evidence that such matters should be reported to more senior people in the Archdiocese or to the police, but, reading his evidence as a whole, I think that he was saying that such allegations should only be reported if there is something in them.
- However, matters did not stop with M and his complaints. As Jack J went on to say in paragraph 106, "[i]f Father McTernan had been observant, as he should have been", after he had talked to M's father, "he would have been aware of Father Clonan's associations with boys like M and the car washing and so on. The complaint was not one which could have been brushed under the carpet". In other words, having heard M's father's complaint, which was serious, and Father Clonan's denial, which may well have been apparently sincere, and having decided to take matters no further for the moment, Father McTernan was plainly under a duty to keep a very careful eye on Father Clonan. He was on notice of the possibility that Father Clonan was sexually abusing boys, as, however convincing the denial, the possibility of M's allegation being true could plainly not be ruled out. By not reporting it to the police or to his superiors in the Archdiocese, Father McTernan, a priest of the same Church, senior to Father Clonan, and living in the presbytery, plainly had a duty to keep a very careful eye on Father Clonan's activities.
- Had Father McTernan performed that duty, then the Judge must, to put it at its lowest, have been entitled to conclude that he would have seen enough to persuade a reasonable priest in Father McTernan's position that action had to be taken. At the very latest, he should have been aware that Father Clonan was bringing the claimant not merely into the presbytery, but into his room on his own. With the knowledge of M's allegation, that would have required him to take immediate action to ensure, at the very least, that Father Clonan stopped seeing the claimant alone in his room. As the sexual abuse of the claimant started in Father Clonan's room, it seems to me that the likelihood is that, if Father McTernan had acted as he ought to have done, not averting his gaze (or, as the Judge put it, brushing the allegation under the carpet), but keeping an eye on Father Clonan, and taking appropriate action when he saw what was going on, that action would have resulted in the claimant not being sexually abused.
- In this connection, it seems to me that the claimant would not have been sexually abused on his first visit to Father Clonan's room, and it would only have been after a few visits that the sexual abuse would have started. That would be consistent with the careful, relatively gradual, grooming of the claimant by Father Clonan, as well as with the evidence of M, to the effect that his actual sexual abuse only started after an initial series of ostensibly innocent incidents of physical contact, such as picking M up and lifting him off the ground.
- The notion that Father McTernan was indeed ignoring the issue of Father Clonan's sexual abuse of boys is strongly supported by the fact that, on the one occasion when the claimant complained of what Father Clonan was doing to him, Father McTernan simply told him not to be so silly. Given M's father's previous complaint, this was unforgivable (although it would not of itself establish the claimant's claim, as ex hypothesi his sexual abuse at the hands of Father Clonan would have already started, and it is not clear at what stage he made the complaint).
- It is, rightly, common ground that the Archdiocese is liable for any negligence of Father McTernan in this connection. Accordingly, for reasons which are perhaps slightly different from those of the Judge, I am of the view that the Archdiocese, through Father McTernan was negligent in being inappropriately casual in its supervision of Father Clonan following the allegation that he had sexually abused M, and that this negligence was causative of the claimant's loss. The sole remaining question is whether the claim under this head should nonetheless fail for the reason given by the Judge, namely that, although the Archdiocese was negligent, and therefore would have been in breach of any duty of care which it had to the claimant, it in fact owed no duty of care to the claimant.
Did the Archdiocese owe a duty of care to the claimant?
- The test as to whether or not a duty of care is owed is conveniently taken from a well-known passage in the opinion of Lord Bridge of Harwich in Caparo Industries plc v Dickman  2 AC 605, 617H-618A, which was quoted by the Judge at paragraph 104 of his judgment. Lord Bridge said that "in addition to the forseeability of damage", the "relationship" between the parties must be "one of 'proximity' or 'neighbourhood' and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other."
- Applying this test, I consider that the Judge was wrong to conclude that the Archdiocese owed no duty of care to the claimant. He seems to have based this conclusion on two factors; first, that it would not be reasonable to conclude that there was a duty "to the world at large", and secondly, that, as there was no vicarious liability, it effectively followed that there was no duty of care. I am unimpressed by either reason.
- As to the first reason, the duty alleged is a duty on the Church, through Father McTernan, to keep a look out for, and to protect, young boys with whom Father Clonan was associating, after a complaint that he had sexually abused a boy. Particularly if one focuses, as it seems to me that one should, on the claimant's visits to the presbytery, Archdiocese property where Father Clonan lived and could be alone with the claimant, and where Father McTernan also lived, I find it hard to see why it should not be fair just and reasonable to impose a duty on Father McTernan, for which the Archdiocese would be vicariously liable. To treat this as a duty to the world in general is, in my view, to mischaracterise it.
- The Judge's second reason appears to me to be wrong in principle and, in the event, wrong on the facts. It is wrong on the facts because, for the reasons already given, I consider that the Archdiocese was vicariously liable for Father Clonan's sexual abuse of the claimant. The reason is wrong in principle because it is easy to envisage circumstances where an employer could owe, and be in breach of, a duty of care, without being vicariously liable, in respect of the sexual abuse committed by an employee. A school would not normally be vicariously liable for sexual abuse committed against a pupil by a gardener employed at the school, but, if the school had received previous allegations against the gardener of sexual abuse of pupils, failure to deal appropriately with those complaints so that he committed the abuse complained of would, at least on the face of it, give rise to a claim in negligence against the school. This proposition is underscored by the fact that, although the majority of the Canadian Supreme Court agreed that the vicarious liability claim in Jacobi (1999) 174 DLR (4th) 71 should be dismissed, they nonetheless remitted the case for the issue of breach of duty to be considered - (1999) 174 DLR (4th) 71, paragraph 87.
- Accordingly, I would allow the claimant's appeal and dismiss the Archdiocese's cross-appeal.
Lord Justice Longmore:
- In Lister v Hesley Hall Ltd  1 AC 215 the House of Lords imposed vicarious liability on the owners of a school run as a commercial enterprise for children with emotional and behavioural difficulties sent to the school by local authorities. One of their employees, Mr Grain, was the warden of a boarding annex some two miles from the school. The house was intended to be a home for the boys not a mere extension of the school environment. Unknown to the owners Mr Grain sexually abused boys in his care between 1979 and 1982. After he had left the school Mr Grain was sentenced to 7 years imprisonment.
- The Court of Appeal, following previous authority, had applied the principle which required a wrongful act to have been done in the course of his employment and Professor Salmond's test that a wrongful act was deemed to have been done in the course of his employment if it is either
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.
- The House of Lords disagreed because Salmond had gone on to say that a master was liable even for acts which he had not authorised
"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.
- On the facts of the present case, while it might be said in a general way that Father Clonan's abuse of the claimant was so connected with what he was authorised to do that it can be regarded as a mode of doing what he was authorised to do, it would be difficult to say that the Roman Catholic church in general or the Archdiocese of Birmingham in particular had undertaken in any realistic sense to care for him. That was the duty of his parents or his school, not a church to which he did not belong. The case is not, therefore, precisely covered by Lister. The first question which arises is whether an undertaking of responsibility, similar to that of a school or a local authority to its children, is essential before vicarious liability can be imposed.
- In my judgment it is not. Such responsibility is just one instance in which the test of close connection, enunciated by Salmond and espoused by Lister, may be satisfied. But there is no reason why there may not be other instances.
- Since this case is not covered by previous authority, it may be necessary to have in mind the policy behind the imposition of vicarious liability. That is difficult because there is by no means universal agreement as to what that policy is. Is it that the law should impose liability on someone who can pay rather than someone who cannot? Or is it to encourage employers to be even more vigilant than they would be pursuant to a duty of care? Or is it just a weapon of distributive justice. Academic writers disagree and the House of Lords in Lister did not give any definitive guidance to lower courts.
- Regardless of general policy considerations, however, it seems to me to be important to look at the nature of the employer in this particular case. For the purposes of this action (but not otherwise), it is accepted that Father Clonan was an employee of the Archdiocese. The Archdiocese is a Christian organisation doing its best to follow the precepts of its Founder (see, in particular, Mark 10.13-16). Like many other religions, it has a special concern for the vulnerable and the oppressed. That concern may not be quite the same as the legal obligation to care or assumption of responsibility for care that was emphasised by Lord Steyn or Lord Hobhouse in Lister but it seems to me to be analogous.
- In the case of the Roman Catholic Church, this situation is further emphasised by its claim to be the authoritative source of Christian values. 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 on 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 a parent than that of a priest. In this circumstance the absence of any formal legal responsibility is almost beside the point.
- What is said in this present case is that while the Church would accept responsibility for abuse of an altar boy and (probably) a member of the congregation, this case is different because the victim of Father Clonan's abuse came into his ambit in a non-church manner, by admiring his sporty Triumph car, by taking part in disco evenings to which all were welcome, clearing up afterwards and then doing jobs in the Presbytery where Father Clonan lived with Father McTernan. But the progressive stages of intimacy were to my mind only possible because Father Clonan had the priestly status and authority which meant that no one would question his being alone with the claimant. It is this that provides the close connection between the abuse and what Father Clonan was authorised to do.
- The majority of the House of Lords in Lister derived great assistance from the judgments in the Canadian cases of Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71, Lord Steyn even saying that, whenever the problem of vicarious liability for sex abuse is considered in future in the common law world, those judgments should be the starting point.
- In Bazley the court imposed liability on the operators of a residential care facility for emotionally troubled children. The employees had quasi-parental duties ranging from general supervision to more intimate duties such as bathing the children and putting them to bed. McLachlin J surveyed the law of vicarious liability and summarized her conclusions in the following way in para 46:-
"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.
- How difficult these cases can be is shown by Jacobi decided on the same day where McLachlin J found herself in the minority. The majority decided that the operators of a club offering a recreational facility for children were not vicariously liable for the acts of an employee abusing a child because (apart from one minor incident) those acts had occurred away from the club and outside working hours. But even in this case the opinion of the majority is helpful. Binnie J reviewed many previous authorities and adopted the analysis of Bazley v Curry which he called the Children's Foundation case saying in para 58:-
"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"
- Mr Faulks QC for the Archdiocese submitted that the "strong" connection had to precede the "job-created power" and "job-created intimacy". But it is more natural to look at the global picture. When one does so, one sees that this is a case of Father Clonan inviting the claimant to the Presbytery and there abusing him. That displays a strong connection with the Church by a priest whose power and ability to exercise intimacy was conferred by virtue of his ordination by the Church. Overall that connection with what Father Clonan was authorised to do is sufficiently strong to fit squarely within Professor Salmond's requirements for vicarious liability as approved in Lister.
- Lastly I should notice the case of O'Keefe v Hickey  IESC 72 in the Irish Supreme Court where the question was whether the Irish State was liable for abuse committed by a priest in a state school operated by the church. The case is a mine of Anglo-Irish history since the answer appeared to turn on the terms of a letter issued and signed by the Chief Secretary for Ireland, Lord Stanley, in 1833 shortly after Catholic Emancipation in 1829. This letter (known as the Stanley letter) set out the terms on which the Catholic Church was to have an over-riding status in the teaching provided by state schools. But in the course of the judgments, the judges had occasion to consider recent developments in the law of vicarious liability. Hardiman J declined to follow Lister since he could find no development of a coherent legal principle nor even a clear articulation of what was said to be the "policy issues". He paid Lord Hobhouse the compliment of having delivered the most rigorous speech but still refused to follow it.
- Fennelly J, however, did derive assistance from Lister and the Canadian cases and concluded:-
"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.
- So I agree with the judgment of the Master of the Rolls in relation to vicarious liability in all respects save a very minor one. I would not myself lay any emphasis on the Church's so-called "duty to evangelise". This duty of imperfect obligation is essentially too nebulous to be relied on and I would not wish to think that a church which claimed to be under no such duty should not be vicariously liable for abuse by its pastors.
- On all other matters, I agree with Lord Neuberger's judgment.
Lady Justice Smith:
- I have read the judgments of the Master of the Rolls and Longmore LJ in draft. They are in agreement on every issue of substance, although Longmore LJ expresses some reservation about the Master of the Rolls' reliance, in paragraph 46, on the duty of a priest of the Roman Catholic Church to evangelise. He says that he would not wish to think that a non-evangelical church should not be vicariously liable for abuse committed by its pastors.
- As to this, there is no doubt that, on the evidence in the present case, the duty to evangelise was clearly established by Monsignor Moran. That duty was one of the factors or circumstances which provided Father Clonan with the ostensible authority to befriend and become intimate with the claimant and boys like him. That duty and ostensible authority to befriend the claimant created the opportunity for the abuse and also increased the risk of abuse. But I do not think that, if a priest or pastor of an non-evangelical church had the ostensible authority to befriend and develop intimacy with a young person by reason of his pastoral duties and if he then abused the opportunities given by that ostensible authority, the position of that church would be any different from the position of the Roman Catholic Church in this case.
- All cases of this type will be fact sensitive. It will be necessary to examine with what ostensible authority the church clothes its priests or pastors and for what legitimate purposes. The legitimate purposes might or might not include the duty of evangelisation; the duties might be purely pastoral. 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.
- In short, I do not think there need be any difference of view between the Master of the Rolls and Longmore LJ. I agree with both of them and have nothing further to add.
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