One of the most difficult challenges when responding to claims for damages consequent upon sexual abuse is trying to determine who is potentially liable for payment of claims, provision of care or other rehabilitation services.
It is clear that anyone who abuses another person will bear personal responsibility but they are often not a real target for reparations as they often have limited assets or, as in many non-recent cases, they have died or cannot be located.
The principles of vicarious liability have developed over the years. While it may seem harsh to make one party responsible for the actions of another, it is a public policy arrangement there to protect everyone. The aim of protecting an innocent victim is a fair and proper one.
The courts have accepted the view that if a party introduces a risk into a community then if their servants or agents create a problem, it is fair to ask them to underwrite the loss.
This concept has developed from the earliest years of T v Northumberland Borough Council, through Lister v Hesley Hall and up to the current very wide ranging position following Muhammed v Morrisons and Cox v Ministry of Justice.
However in a recent decision in the High Court in Dublin the wide role out of application of vicarious liability was halted, albeit possibly temporarily, when a Diocese was found not to be vicariously liable for the actions of a priest who was a teacher and chaplain in a school. In that case the school was found to be liable. Given recent decisions have suggested that the courts will be prepared to stretch the connection test this case seems at odds with the general direction of travel, particularly the judgment in Various Claimants v CCWS & Institute of Brother of Christian Schools.
The judgment reflects that the principles have been carefully applied, an employer was found to be liable for the actions of the priest and it seems might even be held responsible for the aggravated damages awarded because of the defence conducted by the priest (over which the school had no control).
In short the position of who may be responsible in a set of circumstances is likely to turn on what those circumstances are. It is therefore very important when receiving any complaint or allegation to ensure that all the proper parties are identified and to ensure full and detailed investigations are carried out as to the roles and responsibilities of everyone concerned.
Written by Fintan Canavan, partner at BLM