Vicarious Liability

A recent Court of Appeal decision looked at the ‘close connection’ test in the case of MAGA (By His Litigation Friend, The Official Solicitor) v Trustees of the Birmingham Archdiocese of the Roman Catholic Church (2010) and considered whether it was fair and just to impose vicarious liability upon the Defendant employer.

The Claimant sought damages for sexual abuse which he claimed he was subjected to when aged 12 or 13. The Court found that the Claimant had been sexually abused on many occasions by a Catholic Priest. The Claimant had first admired the Priest’s car which led to the Priest inviting the Claimant to attend a church disco, and later led the Priest paying the Claimant for various small jobs undertaken in the presbytery. Although the Claimant was not catholic and had not become involved in the activities of the church, the Priest had cultivated him for the purpose of sexual abuse and most of the abuse took place in the presbytery. At Trial, the High Court had found that the Archdiocese were not vicariously liable for the abuse perpetrated by the Priest but the Claimant successfully appealed against this decision. The Court of Appeal accepted that there were a number of factors which, when taken together, showed that there was a sufficiently close connection between the Priest’s employment with the church and the abuse which he had inflicted on the Claimant, to render it fair and just to impose vicarious liability for the abuse upon the Defendant employer.

 

The factors which the Court of Appeal gave in its findings as having been relevant in this case included the following: a Priest had a special role in the community, which involved trust and responsibility. The Priest was normally dressed in clerical garb when he met and abused the Claimant. It was the Priest’s employment that enabled him to come into contact with the Claimant. It was significant that the Priest had been given a special responsibility for youth work at the church, which underlined the point that when the Priest was effectively grooming the Claimant, he was carrying out one of his specifically assigned functions. The Priest was able to develop his relationship by inviting the Claimant onto the church premises and involve the Claimant in church activities such as the disco. It was found that the Priest’s role in the church gave him the status and opportunity to draw the Claimant further into his sexually abusive orbit and the opportunity for the Priest to spend time alone with the Claimant, and commit the abuse in the presbytery had arisen from the Priest’s employment at the church.

 

Defendants and insurers will be disappointed to see this decision on vicarious liability in favour of the claimant. However, it is perhaps not surprising that the first instance decision has been overturned. It seems clear that it will be difficult for an employer to escape vicarious liability in cases such as this.