“We have heard from a number of victims and those speaking on their behalf who believe that the involvement of some insurance companies has in the past put impediments in the way of the Church responding to them in ways that are in keeping with the Church's own spiritual and pastoral ethos and with what is regarded as good welfare practice” (Bishops Conference of England and Wales, Safeguarding with Confidence (2006), para. 5.16). The case of Maga v. Trustees of the Birmingham Archdiocese [2010] EWCA Civ 256 illustrates the contrast between the legal approach adopted by insurance companies and trustees on behalf of the Roman Catholic Church and its own stated moral principles. In brief, the Archdiocese tried to avoid liability for an admitted case of child abuse by one of its priests on the ground first that the limitation period had expired and secondly that it was not vicariously liable for such acts by one of its priests. The latter point is of most significance. When an employee has neither fixed hours of work, nor a fixed location, how is the scope of employment determined?
Fr Clonan, a curate, committed a series of acts of abuse on young boys. Between 1975 and 1976, he groomed M, a 12-year-old, non-Catholic with serious learning difficulties, by employing him to do “odd jobs” such as cleaning his car and ironing his clothes. M did complain once to the parish priest, Fr McTernan, who dismissed the allegation peremptorily. M's father also complained to the parish priest, who felt unable to act since Clonan denied any wrongdoing. By the time of the litigation, Fr McTernan, Fr Clonan, and M's parents were dead. In an action in tort for damages for the abuse, brought by the Official Solicitor on M's behalf, Jack J. dismissed the claim ([2009] EWHC 780 (QB)).
Jack J. had held that the claim was not time-barred, a view which the Court of Appeal upheld. On the facts, M was not capable of conducting the litigation, so he was a person “under a disability” within section 28(1) of the Limitation Act 1980.
Jack J. had dismissed M's claim on the ground that the Archdiocese was not vicariously liable for Fr Clonan's actions towards M. The Archdiocese conceded that a priest could be treated as its employee. But the trial judge held that, though this employment gave Fr Clonan the opportunity to abuse M, his use of the boy to clean the car and iron his clothes were not priestly activities nor did they involve drawing M into the activities of the Church. So the Archdiocese was not vicariously liable. Unlike Lister v. Hesley Hall Ltd. [2002] 1 A.C. 215 which had involved child abuse by a warden in a school, the abuse here did not occur within Clonan's priestly duties.
Lord Neuberger M.R. expressed the somewhat surprising view that “the issue is not easy to resolve”, but then impeccably destroyed the arguments of the Archdiocese with an analysis that few Catholic parishioners would have found at all remarkable. The priest was dressed in clerical attire and was referred to as “Fr Chris”. Many of the acts of abuse were conducted in the presbytery. Longmore L.J. noted at more length that, according to the evidence of the Vicar General of the Archdiocese, the priest's duty of evangelisation involved befriending and gaining the trust of non-Catholics. In addition, Fr Clonan had a specific ministry within the parish for young people and it was not unusual at the time that young people in parishes might be invited to help a priest in the performance of menial tasks. The Court of Appeal's finding that the abuse occurred in connection with the priest's duties is surely correct. It is not as if the priest had an altercation with a bookmaker over the result of the 3.45 at Newmarket. Similar to Lloyd v. Grace, Smith & Co [1912] A.C. 716, abuse by a priest was a known, if deeply undesired, risk of putting him into a position of trust to perform his duties, just as putting a clerk on his own in charge of a branch office created a risk of fraud. The actions in question did not fall outside the tasks for which the person was employed.
The second basis of liability was that Fr McTernan took inadequate steps to investigate the allegations made by M and reported by his father. He took the denial of Fr Clonan as sufficient to do nothing more, even though there were a number of similar allegations circulating. Unlike Jack J., the Court of Appeal held that the Archdiocese owed a duty of care to M in such circumstances. It had a direct duty of care towards those who came into pastoral relations with it. Its duty, exercised through the parish priest, was to take sufficient steps to investigate allegations of abuse in order to prevent future incidents. This was not a duty to all the world, but a duty to look out for and to protect the young boys with whom Fr Clonan came into contact. Even if the Archdiocese had not been vicariously liable for the actions of the priest, there would still have been a duty of care once allegations had been made to deal properly with the complaints. Here the Court relied on the Canadian decision of Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71.
Maga does not advance the principles of the law on vicarious liability a great deal. As Smith L.J. said, decisions in these sorts of case are fact sensitive. Maga provides a good example of this need to examine the context of actions closely when applying those principles. This is the only way to handle the flexible working hours and locations of many contemporary employees, not just clergy. It also demonstrates that the ultimate justification of vicarious liability is really the risk which an employer creates for those who encounter his business or enterprise. Many employees are trusted to carry out their job with minimal supervision. Such working patterns create many benefits, but they carry risks that the employer properly should shoulder.
