AN imminent ruling by the High Court will decide whether the Catholic Church is liable for the actions of its paedophile priests.
The ruling, due this month (Oct), will follow a little publicised case brought by a woman who alleges she was sexually abused by Father Wilfred Baldwin who worked in the diocese of Portsmouth during the 1970s.
"JGE" - as she is known - claims that she was raped by Father Baldwin (now deceased) when she was a six year old resident in a local children's home.
She is seeking compensation from the diocese on the basis that because the priest was engaged to work in the Portsmouth diocese, it was 'vicariously liable' for his behaviour.
However, the Catholic Church is arguing that it is not vicariously liable for the actions of its priests because they are not legally employees. While the church has employed this argument many times before, it is the first time it has been used in an open court.
Since the decision by the House of Lords in the Lister case in 2001, organisations may be 'vicariously liable' for sexual assaults committed by those they employ, or with whom they have a relationship akin to employment, and where the sexual assaults are closely connected with the organisation's activities.
A crucial issue in deciding whether to impose vicarious liability is the degree of day-to-day control exercised by the organisation over the perpetrator of the assaults. The JGE case has been reported as being about whether the Catholic Church 'employs' its priests. The Catholic Church says because there are no contracts of employment for priests, it technically doesn't employment and therefore is not vicariously liable for its actions. (The Catholic Church is presumably hoping that the judge doesn't have a copy of the Concise Oxford English Dictionary: for the etymology of the word 'vicarious', it says 'Latin vicarius; see VICAR').
The Catholic Church's argument misses the point. There are many English case law authorities which confirm that a formal contract of employment is not a prerequisite for the imposition of vicarious liability.
As the Court of Appeal explained in the Viasystems case (2006), the issue is control: who has control over the actions of the person who is committing the wrongful act? It's the organisation which controls the person day-to-day which is vicariously liable. And rightly so.
In an important case in 2004, the Canadian Supreme Court held that a Catholic bishop was vicariously liable for the actions of a paedophile priest. Whether or not the bishop and the priest had an 'employment contract' in the strict legal sense was beside the point.
The bishop exercised control over the priest and therefore they certainly had a relationship akin to that of employment and vicarious liability would apply.
The Catholic Church in the UK is trying to evade responsibility for compensating the victims of child abuse by arguing that the church does not technically employ priests. But whether or not it employs them in the strict sense, it certainly exercises control over them. The Catholic Church dresses its priests in clerical garb and confers on them, a special role of trust and moral responsibility - a role sadly exploited by a considerable number of priests to groom and abuse children.
It's disappointing, although perhaps not surprising, to see the Catholic Church trying to rely on technical legal loopholes to escape liability to victims of the abuse scandal. You would think that an institution which prides itself on being a moral beacon in society would want to pay fair and just compensation to victims. It seems not.
If the court rules in favour of the church it would set a legal precedent and prevent victims of abuse by priests from seeking damages.
I hope the High Court will force the Catholic Church to meet its moral and legal responsibilities and compensate those who have suffered sexual abuse at the hands of its paedophile priests.