MAGA (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR TO THE SUPREME COURT) V TRUSTEES OF THE BIRMINGHAM ARCHDIOCESE OF THE ROMAN CATHOLIC CHURCH [2010] EWCA Civ 256
FACTS:-
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. He could not read or write.
Father Clonan had joined the Church in around 1972 and he had put a great deal of energy into starting up a disco, a social club and other clubs for young people. He also ran a number of football teams. He constructed a community centre in the curtilage of the church using his own construction firm. He was a wealthy man owning two houses in the Coventry area and driving a sports car. He also paid boys to do odd jobs around the church.
It was alleged that in 1974, a Father McTernan, Father’s Clonan’s immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. In that year, the Claimant was moved to a series of special schools owned by Pitt House Schools Limited (also a Defendant), where he alleged abuse.
In 1988 there was an allegation made by an inmate at Grendon Underwood Prison that he had been abused by Father Clonan. In July 1992 further allegations were brought to the attention of Father Clonan himself by parents of a child who alleged abuse. Father Clonan fled the country. In September 1996, Father McTernan died. In December 2000, following publicity about the case, the Archdiocese published a statement to the effect that Father Clonan was a danger to children. On the 30th November 2000, the Claimant made a statement to the police, but it was not until the 31st July 2006 that a Letter of Claim was sent to the Defendants and proceedings were issued on the 26th September 2006. The claim was framed in vicarious liability and negligence.
Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that:-
Both the Claimant and the Defendant appealed against these findings, save for the quantum decision.
HELD:-
Lord Neuberger MR set out the basic facts and findings in the case.
Mental capacity – Section 28(1) of the Limitation Act 1980
The judge had obtained guidance as to the approach in relation to Section 28(1) of the Limitation Act 1980 from four cases:-
The judge had concluded that 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 would arise in their course.
Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimant’s counsel had said that the correct test was the Claimant’s ability to conduct the litigation and the Defendant’s counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach.
Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimant’s psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings.
The Defendant’s counsel criticised this decision on the following grounds:-
Lord Neuberger said that the judge had taken into account (a). In relation to (b) mental incapacity was a huge advantage to any Claimant, but that was a matter of law. The expert evidence under (c) was somewhat confused, but one of the problems was the phrasing of the questions about capacity and the psychiatrists caring for the Claimant seemed to support his own expert’s view about incapacity. As for (d) the Claimant could not possibly have been told that he would recover £750,000. At best that factor cut both ways as did (e). The road traffic claim had been brought with the help of a Citizens Advice Bureau and Claims Direct, but the way the Claimant dealt with the offer of compensation suggested incapacity. (f) did not take matters any further – the judge saw and heard the Claimant give evidence. In relation to (g) it was plain that the Claimant could not deal with his finances. (h), (i) and (j) appeared to provide support for either side in the litigation.
The judge might have spent a little more time explaining how he reached his conclusions, but it was quite possible to discern his reasons. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
Sections 11 and 33 of the Limitation Act 1980
In view of the decision above, no decision was needed on these issues.
The Judge’s finding that the Claimant was sexually abused by Father Clonan
The Defendant appealed against the judge’s finding that the Claimant was abused as he described, on the grounds that he was an unreliable witness. Lord Neuberger said that this submission faced an uphill task. The judge had considered the evidence and the problems with the Claimant’s account of events. In addition, there were a number of boys who had been abused by Father Clonan. That was not a point that should be taken too far but it was not unlikely that the Claimant’s evidence was in fact true. Therefore the judge’s careful analysis of the evidence could not be faulted.
The Judge’s conclusion that the Defendant was not vicariously liable
The law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abuser’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Also a broad approach should be adopted when considering the scope of the employment. Lord Clyde had said that while consideration of the time at which and the place at which the acts occurred would always be relevant, they might not be conclusive. The opportunity of being present did not necessarily mean that the act was necessarily within the scope of the employment.
Lord Hobhouse in Lister had adopted a somewhat different approach, concentrating more on the nature of the duty owed by the Defendant to the Claimant and treating that duty as delegated or entrusted to the warden. Lord Millett had said that the critical point was the closeness of the connection between the employees’ duties and his wrongdoing, but he then followed Lord Hobhouse’s reasoning by saying that the abuser had abused the special position in which the school had placed him to discharge its own responsibilities.
The majority of the Lords in Lister considered that the approached taken by the Canadian Supreme Court in the cases of Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71 was correct and helpful.
Lord Neuberger referred to two other cases Bernard v Attorney General of Jamaica [2004] UKPC 47 and Dubai Aluminimum Co. Ltd v Salaam [2002] UKHL 48.
In this case, the judge accepted that youth work was part of Father Clonan’s employment as a priest and that his position gave him the opportunity to abuse the Claimant. However he said that this was not sufficient to render the Defendant liable. Father Clonan’s association with the Claimant was founded no his use of the Claimant to wash his care, do the cleaning and to iron his clothes, which was not a priestly activity.
Lord Neuberger said that this issue was a matter of law. The judge appeared 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. There was not doubt that the Claimant’s case was weaker than that of the Claimant in Lister or of a Roman Catholic boy, such as M who was an altar server. However a number of factors pointed towards a sufficiently close connection between Father Clonan’s employment as a priest and the abuse that he inflicted on the Claimant to render it fair and just to impose vicarious liability for the abuse on his employer.
In the case of Jacobi, the Canadian Supreme Court suggest that in order to establish vicarious liability, the Claimant had to 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. Lord Neuberger said that this requirement was satisfied.
Therefore 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 Defendant vicariously liable.
The Judge’s dismissal of the breach of duty claim against the Defendant
The Defendant’s counsel contended that the Judge had been wrong to conclude that M’s father complained to Father McTernan or that there was any negligence on the part of Father McTernan. However the Defendant’s counsel also supported the Judge’s finding that there was no duty of care owed to the Claimant.
Lord Neuberger said that it was unnecessary to address these points, in light of the decision above. However he would do so.
The evidence in support of a complaint being made to Father McTernan took the form of criminal witness statements, and there was some conflict between the statements. Lord Neuberger did not regard this evidence as being too inconsistent or unreliable and the Judge was entitled to make the finding that this complaint had been made.
In relation to a breach of duty, in the mid 1970’s an allegation by one boy that a priest had fondled his genital would not have been treated nearly as seriously then as it would be now. Until the 1970’s people were reluctant to believe that child sex abuse took place at all. 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 he was given a convincing denial, he then took the matter no further.
However Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Instead he had averted his gaze and the abuse of the Claimant had been allowed to commence. Therefore it was rightly common ground that the Defendant that the Defendant was liable for any negligence on the part of Father McTernan.
In relation to the existence of a duty of care, Lord Neuberger referred to the landmark case of Caparo Industries plc v Dickman [1990] 2 AC 605 where the court said that in addition to the forseeability of damages, the relationship between the parties must be one of proximity or neighbourhood and the situation should be one in which the court considered it fair, just and reasonable that the law should impose a duty of care.
In this case the duty alleged on was on the Defendant to keep a look out for, and to protect young boys with whom Father Clonan was associating, after a complaint that he had abused a boy. Lord Neuberger said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
By way of analogy a school would not normally be vicariously liable for abuse committed by a gardener, but if the school had received complaints about that gardener then it might well be liable in negligence. In the case of Jacobi although the Canadian Supreme Court agreed that the vicarious liability claim should be dismissed, they nonetheless remitted the case for the issue of breach of duty to be considered.
Lord Justice Longmore said that in Lister the House of Lords had held that the acts of the abuser in that cases were so connected with what he was authorised to do by the owners of the school, that those owners were vicariously liable for those acts.
In this case it was difficult to say that the Roman Catholic church had undertaken in any realistic sense to care for the Claimant. That was the duty of his parents. However such an undertaking of responsibility was not essential before vicarious liability could be imposed. Such responsibility was just one instance in which the test of close connection (espoused by Lister) might be satisfied.
Longmore LJ considered the policy reasons behind the imposition of vicarious liability. There was disagreement about this issue, and Lister had not handed down any definitive guidance. However it was important to look at the nature of the employer. Father Clonan was the employee of the Defendant. The Defendant was a Christian organisation doing its best to follow the precepts of its Founder. Longmore LJ referred to the New Testament here - Mark 10.13-16. That situation was further emphasised by its claim to be the authoritative source of Christian values. It was difficult to think of a role nearer to that of a parent than that of a priest.
Longmore LJ also considered the cases of Bazley and Jacobi which provided the starting point. In Bazley vicarious liability was found in relation to abuse committed by employees who had quasi parental duties ranging from general supervision to more intimate duties. However in Jacobi there was no vicarious liability for abuse committed by an employee of a club offering a recreational facility for children. The acts (apart from one minor incident) had occurred away from the club and outside working hours. There was not the job created parent like relationship that attracted vicarious liability in Bazley.
It was more natural to look at the global picture. Longmore LJ referred to a case from the Irish Supreme Court, O’Keefe v Hickey [2008] IESC 72 where the issue was whether the Irish State was liable for abuse committed by a priest in a state school operated by the church. In that case, one of the judges, Fennelly J had derived assistance from Lister and the Canadian cases.
Longmore LJ concluded that he agreed with Lord Neuberger save for a minor point. He would not lay any emphasis on the Church’s so called duty to evangelise. This was too nebulous and he would not wish to think that a church claiming to be under no such duty, should not be vicariously liable for abuse by its pastors.
Lady Justice Smith said that she agreed with the above judgments. There was no doubt that the duty to evangelise was clearly established by the evidence. 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. However Smith LJ did not think that if a priest or pastor of a non-evangelical church had the ostensible authority to befriend and develop intimacy with a young person, the position of that church would be any different from the position of the Roman Catholic Church. All cases of this type would be fact sensitive.
FACTS:-
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. He could not read or write.
Father Clonan had joined the Church in around 1972 and he had put a great deal of energy into starting up a disco, a social club and other clubs for young people. He also ran a number of football teams. He constructed a community centre in the curtilage of the church using his own construction firm. He was a wealthy man owning two houses in the Coventry area and driving a sports car. He also paid boys to do odd jobs around the church.
It was alleged that in 1974, a Father McTernan, Father’s Clonan’s immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. In that year, the Claimant was moved to a series of special schools owned by Pitt House Schools Limited (also a Defendant), where he alleged abuse.
In 1988 there was an allegation made by an inmate at Grendon Underwood Prison that he had been abused by Father Clonan. In July 1992 further allegations were brought to the attention of Father Clonan himself by parents of a child who alleged abuse. Father Clonan fled the country. In September 1996, Father McTernan died. In December 2000, following publicity about the case, the Archdiocese published a statement to the effect that Father Clonan was a danger to children. On the 30th November 2000, the Claimant made a statement to the police, but it was not until the 31st July 2006 that a Letter of Claim was sent to the Defendants and proceedings were issued on the 26th September 2006. The claim was framed in vicarious liability and negligence.
Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that:-
- The claim was not time barred since the Claimant was under a disability for the purposes of Section 28(1) of the Limitation Act 1980.
- If the Claimant could not rely on Section 28(1) he could rely on Section 11 of the Limitation Act 1980 (date of knowledge)
- If the Claimant could not rely on Section 11, the court would exercise its discretion under Section 33 of the 1980 Act.
- The Claimant’s story of abuse was substantially as he alleged
- However the Defendant was not vicariously liable for the abuse by Father Clonan
- Although the Defendant had been negligent in not acting on the report of Father Clonan’s abuse in 1974, the Defendant owed no duty to the Claimant
- Although the Claimant’s claim failed, his damages were assessed at £17,500 general damages and £15,000 for loss of earnings.
Both the Claimant and the Defendant appealed against these findings, save for the quantum decision.
HELD:-
Lord Neuberger MR set out the basic facts and findings in the case.
Mental capacity – Section 28(1) of the Limitation Act 1980
The judge had obtained guidance as to the approach in relation to Section 28(1) of the Limitation Act 1980 from four cases:-
- Kirby v Leather [1965] 2 QB 367
- White v Fell 12th November 1987 Unreported
- Masterman-Lister v Brutton [2003] 1 WLR 1511
- Lindsay v Wood [2006] EWHC 2895
The judge had concluded that 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 would arise in their course.
Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimant’s counsel had said that the correct test was the Claimant’s ability to conduct the litigation and the Defendant’s counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach.
Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimant’s psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings.
The Defendant’s counsel criticised this decision on the following grounds:-
- failure to take into account the Claimant’s ability to manipulate
- failure to allowed sufficiently for the privilege which incapacity conferred in the limitation context
- accepting the Claimant’s expert’s view when it was against the weight of the expert evidence
- the Claimant’s ability to understand that he might receive a large sum – apparently he had been recorded as saying that he would receive £750,000
- the fact that the Claimant had previously brought a claim without a litigation friend (for a road traffic accident)
- the Claimant’s solicitor had certified that the Claimant understood the contents of his statement
- the Claimant had his own bank account and could remember his pin number
- the Claimant could understand concepts such as confidentiality and legal advice
- the Claimant understood and expressed views about the function of the Court of Protection
- the Claimant had taken part in a radio interview where he referred to making a claim against the Defendant
Lord Neuberger said that the judge had taken into account (a). In relation to (b) mental incapacity was a huge advantage to any Claimant, but that was a matter of law. The expert evidence under (c) was somewhat confused, but one of the problems was the phrasing of the questions about capacity and the psychiatrists caring for the Claimant seemed to support his own expert’s view about incapacity. As for (d) the Claimant could not possibly have been told that he would recover £750,000. At best that factor cut both ways as did (e). The road traffic claim had been brought with the help of a Citizens Advice Bureau and Claims Direct, but the way the Claimant dealt with the offer of compensation suggested incapacity. (f) did not take matters any further – the judge saw and heard the Claimant give evidence. In relation to (g) it was plain that the Claimant could not deal with his finances. (h), (i) and (j) appeared to provide support for either side in the litigation.
The judge might have spent a little more time explaining how he reached his conclusions, but it was quite possible to discern his reasons. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
Sections 11 and 33 of the Limitation Act 1980
In view of the decision above, no decision was needed on these issues.
The Judge’s finding that the Claimant was sexually abused by Father Clonan
The Defendant appealed against the judge’s finding that the Claimant was abused as he described, on the grounds that he was an unreliable witness. Lord Neuberger said that this submission faced an uphill task. The judge had considered the evidence and the problems with the Claimant’s account of events. In addition, there were a number of boys who had been abused by Father Clonan. That was not a point that should be taken too far but it was not unlikely that the Claimant’s evidence was in fact true. Therefore the judge’s careful analysis of the evidence could not be faulted.
The Judge’s conclusion that the Defendant was not vicariously liable
The law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abuser’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Also a broad approach should be adopted when considering the scope of the employment. Lord Clyde had said that while consideration of the time at which and the place at which the acts occurred would always be relevant, they might not be conclusive. The opportunity of being present did not necessarily mean that the act was necessarily within the scope of the employment.
Lord Hobhouse in Lister had adopted a somewhat different approach, concentrating more on the nature of the duty owed by the Defendant to the Claimant and treating that duty as delegated or entrusted to the warden. Lord Millett had said that the critical point was the closeness of the connection between the employees’ duties and his wrongdoing, but he then followed Lord Hobhouse’s reasoning by saying that the abuser had abused the special position in which the school had placed him to discharge its own responsibilities.
The majority of the Lords in Lister considered that the approached taken by the Canadian Supreme Court in the cases of Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71 was correct and helpful.
Lord Neuberger referred to two other cases Bernard v Attorney General of Jamaica [2004] UKPC 47 and Dubai Aluminimum Co. Ltd v Salaam [2002] UKHL 48.
In this case, the judge accepted that youth work was part of Father Clonan’s employment as a priest and that his position gave him the opportunity to abuse the Claimant. However he said that this was not sufficient to render the Defendant liable. Father Clonan’s association with the Claimant was founded no his use of the Claimant to wash his care, do the cleaning and to iron his clothes, which was not a priestly activity.
Lord Neuberger said that this issue was a matter of law. The judge appeared 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. There was not doubt that the Claimant’s case was weaker than that of the Claimant in Lister or of a Roman Catholic boy, such as M who was an altar server. However a number of factors pointed towards a sufficiently close connection between Father Clonan’s employment as a priest and the abuse that he inflicted on the Claimant to render it fair and just to impose vicarious liability for the abuse on his employer.
- Father Clonan was normally dressed in clerical garb and was so dressed when he met the Claimant. A priest had a special role and was rarely out of uniform. He had a role in the church, and a certain moral authority.
- Father Clonan’s functions as a priest included a duty to evangelise to Roman Catholics and non Roman Catholics, as the evidence of another priest, Monsignor Moran had indicated.
- Father Clonan was given a special responsibility for youth work at the Church
- Father Clonan was able to develop his relationship with the Claimant by inviting him to a disco on Church premises, which was a Church organised function.
- That relationship was further developed by getting the Claimant to clear up after discos again on Church premises at the request of a church employee. It was true that much of the washing and cleaning done by the Claimant for Father Clonan was not connected with his priestly role although it could be said to be ostensibly connected with the evangelising aspect of Father Clonan’s job.
- The work that the Claimant carried out in the presbytery of the Church did assist his case on vicarious liability
- The first incident of abuse occurred in Father Clonan’s room in the presbytery. Father Clonan’s priestly duty involved spending time alone with individuals such as the Claimant. It was true that some of the abuse occurred away from the presbytery but that was scarcely in point. The abuse started in the presbytery and continued there, albeit not exclusively. In any event, Father Clonan as a priest could justify and explain why he was alone with the Claimant whether in one of his houses or in the car.
In the case of Jacobi, the Canadian Supreme Court suggest that in order to establish vicarious liability, the Claimant had to 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. Lord Neuberger said that this requirement was satisfied.
Therefore 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 Defendant vicariously liable.
The Judge’s dismissal of the breach of duty claim against the Defendant
The Defendant’s counsel contended that the Judge had been wrong to conclude that M’s father complained to Father McTernan or that there was any negligence on the part of Father McTernan. However the Defendant’s counsel also supported the Judge’s finding that there was no duty of care owed to the Claimant.
Lord Neuberger said that it was unnecessary to address these points, in light of the decision above. However he would do so.
The evidence in support of a complaint being made to Father McTernan took the form of criminal witness statements, and there was some conflict between the statements. Lord Neuberger did not regard this evidence as being too inconsistent or unreliable and the Judge was entitled to make the finding that this complaint had been made.
In relation to a breach of duty, in the mid 1970’s an allegation by one boy that a priest had fondled his genital would not have been treated nearly as seriously then as it would be now. Until the 1970’s people were reluctant to believe that child sex abuse took place at all. 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 he was given a convincing denial, he then took the matter no further.
However Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Instead he had averted his gaze and the abuse of the Claimant had been allowed to commence. Therefore it was rightly common ground that the Defendant that the Defendant was liable for any negligence on the part of Father McTernan.
In relation to the existence of a duty of care, Lord Neuberger referred to the landmark case of Caparo Industries plc v Dickman [1990] 2 AC 605 where the court said that in addition to the forseeability of damages, the relationship between the parties must be one of proximity or neighbourhood and the situation should be one in which the court considered it fair, just and reasonable that the law should impose a duty of care.
In this case the duty alleged on was on the Defendant to keep a look out for, and to protect young boys with whom Father Clonan was associating, after a complaint that he had abused a boy. Lord Neuberger said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
By way of analogy a school would not normally be vicariously liable for abuse committed by a gardener, but if the school had received complaints about that gardener then it might well be liable in negligence. In the case of Jacobi although the Canadian Supreme Court agreed that the vicarious liability claim should be dismissed, they nonetheless remitted the case for the issue of breach of duty to be considered.
Lord Justice Longmore said that in Lister the House of Lords had held that the acts of the abuser in that cases were so connected with what he was authorised to do by the owners of the school, that those owners were vicariously liable for those acts.
In this case it was difficult to say that the Roman Catholic church had undertaken in any realistic sense to care for the Claimant. That was the duty of his parents. However such an undertaking of responsibility was not essential before vicarious liability could be imposed. Such responsibility was just one instance in which the test of close connection (espoused by Lister) might be satisfied.
Longmore LJ considered the policy reasons behind the imposition of vicarious liability. There was disagreement about this issue, and Lister had not handed down any definitive guidance. However it was important to look at the nature of the employer. Father Clonan was the employee of the Defendant. The Defendant was a Christian organisation doing its best to follow the precepts of its Founder. Longmore LJ referred to the New Testament here - Mark 10.13-16. That situation was further emphasised by its claim to be the authoritative source of Christian values. It was difficult to think of a role nearer to that of a parent than that of a priest.
Longmore LJ also considered the cases of Bazley and Jacobi which provided the starting point. In Bazley vicarious liability was found in relation to abuse committed by employees who had quasi parental duties ranging from general supervision to more intimate duties. However in Jacobi there was no vicarious liability for abuse committed by an employee of a club offering a recreational facility for children. The acts (apart from one minor incident) had occurred away from the club and outside working hours. There was not the job created parent like relationship that attracted vicarious liability in Bazley.
It was more natural to look at the global picture. Longmore LJ referred to a case from the Irish Supreme Court, O’Keefe v Hickey [2008] IESC 72 where the issue was whether the Irish State was liable for abuse committed by a priest in a state school operated by the church. In that case, one of the judges, Fennelly J had derived assistance from Lister and the Canadian cases.
Longmore LJ concluded that he agreed with Lord Neuberger save for a minor point. He would not lay any emphasis on the Church’s so called duty to evangelise. This was too nebulous and he would not wish to think that a church claiming to be under no such duty, should not be vicariously liable for abuse by its pastors.
Lady Justice Smith said that she agreed with the above judgments. There was no doubt that the duty to evangelise was clearly established by the evidence. 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. However Smith LJ did not think that if a priest or pastor of a non-evangelical church had the ostensible authority to befriend and develop intimacy with a young person, the position of that church would be any different from the position of the Roman Catholic Church. All cases of this type would be fact sensitive.