The employer can be held liable for a duty of care and be held vicariously liable even where the victim was not part of a work relationship.

Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256

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• The claimant won on vicarious liability which arose even when the claimant did not originally have a work relationship with the abuser.
• A duty of care arose after allegations of abuse were ignored
• A sufficiently close connection between the employment and the abuse led to the vicarious liability.
• Negligence established a duty of care to the claimant.

Father Clonan ran a disco, various clubs and football teams and a community centre for the young, using these as cover in which to abuse boys.

The claimant was learning disabled when the events happened so (following Kirby v Leather [1965] 2 QB 367, Masterman-Lister v Brutton [2003] 1 WLR 1511)it was decided that under Section 28(1) of the Limitation Act 1980 his claims were not time-barred.

The Archdiocese had accepted that Father Clonan was its employee for the purposes of the case whilst arguing that even if Father Clonan was treated as its employee, the Archdiocese was not vicariously liable for his abuse, citing Lister v Hesley Hall Ltd [2002] 1 AC 215 where a company was liable to a pupil sexually abused by the warden of its boarding house. Lord Steyn had 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"and whether the acts were "within the scope of the employment".

The Court of Appeal found that there was a sufficiently close connection between Father Clonan's employment as priest at the Church and the abuse to impose vicarious liability the employer. Reasons given for this finding included Father Clonan being dressed in his "uniform" clerical garb when he first met the claimant, that he had a duty to evangelise, so he was seemingly performing his duty as a priest employed by the Archdiocese by getting to know the claimant. His getting to know the claimant for the wrong reasons was not relevant. The relationship was developed with the claimant whilst ostensibly performing his pastoral duties and that Father Clonan was responsible for youth work at the Church.

The Court of Appeal included a word of warning that a court should not be overly ready to impose vicarious liability on a defendant as this liability for tort may involve no fault on his part and might have a deleterious effect on schools, charities and social clubs aimed at the young if too readily imposed (after the Canadian Supreme Court decision in Jacobi (1999) 174 DLR (4th) 71).In Jacobi also suggested that to establish vicarious liability the claimant must show that there was "a material increase in the risk of harm occurring in that the employment significantly contributed to the occurrence of the harm".

Father McTernan ignored a number of complaints against Father Clonan so the Archdiocese was liable for his negligence. The Archdiocese through Father McTernan was negligent in its supervision of Father Clonan following allegations and this negligence was causative of the claimant's abuse ('loss'). The negligence established that the Archdiocese owed a duty of care to the claimant.

Lord Bridge's test of Caparo Industries plc v Dickman [1990] 2 AC 605, 617H-618A was used in support of this decision. "In addition to the forseeability of damage, the relationship between the parties must be one of 'proximity' or 'neighbourhood'. The court also needs to consider 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."

The Church Archdiocese was vicariously liable to protect young boys from Father Clonan after a complaint was made that he had sexually abused a boy. Lord Neuberger MR stressed that even where an employer was not vicariously liable, liability under a duty of care and a subsequent negligence claim could arise where there were, for example, previous allegations a school gardner abused children (Canadian Supreme Court - (1999) 174 DLR (4th) 71).

The claimant won the appeal by way of the vicarious liability of the employer.