Church not vicariously liable for sexual abuse by assistant priest; assaults were not sufficiently closely connected with his employment.

This claim was for damages arising from the alleged sexual abuse of the Claimant when he was a young boy, by an assistant priest, Father Clonan serving at the Church of Christ the King in Coventry. The Claimant, who is now aged 45, has learning difficulties. It was uncertain when the alleged abuse began or for how long it continued but the Judge accepted that abuse had occurred. The Claimant alleged that the Church was vicariously liable for the abuse. In addition, he argued that the Church was negligent because a complaint alleged to have been made concerning Father Clonan in about 1974 was not followed up and he was therefore left free to abuse others.  

Held: The decision of the House of Lords in Lister v Hesley Hall Ltd [2002] was adopted in Mattis v Pollock [2003] where the Court of Appeal said that the relevant question was whether the tort was so closely connected with what was authorised or expected of the employee that it would be fair and just to hold the employer vicariously liable. It was Father Clonan’s position as a priest that gave him the opportunity to abuse the Claimant. However, his association with the Claimant was founded on the use of the Claimant in exchange for money to wash his car, iron and clean and that employment was not a priestly activity. He did not do anything to draw the Claimant into the Church. Accordingly the assaults were not so closely connected with his employment or quasi-employment by the Church that it would be fair and just to hold the Church liable. In addition, the Claimant fell outside any duty of care owned by the Church.  

Comment: This is the latest in a line of decisions on the issue of vicarious liability and it is refreshing for defendants and insurers, in the context of a number of decisions in favour of claimants, to see a claim fail. The case demonstrates that it is possible to avoid vicarious liability for every act by an employee if it can be shown that the act in question was not so closely connected with his employment that it would be fair and just to hold the employer liable.  

However, the test set by the House of Lords in Lister and confirmed by the Court of Appeal in Mattis is a wide one. It is worth remembering that in Mattis the employee, a nightclub owner, was found vicariously liable for the acts of a bouncer who stabbed the Claimant with a knife having left the club but returned bent on revenge. Many claims for vicarious liability will succeed.