Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB)

Case No HQ06X02848[2009] EWHC 780 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/04/2009
Before
MR JUSTICE JACK
Between
MAGAClaimant(by his Litigation Friend,ClaimantTHE OFFICIAL SOLICITOR TO THE SUPREME COURT)ClaimantTHE TRUSTEES OF THE BIRMINGHAM ARCHDIOCESE OF THE ROMAN CATHOLIC CHURCHDefendants
Miss Elizabeth-Anne Gumbel QC & Mr Justin Levinson (instructed by Clifton Ingram) for ClaimantMr Edward Faulks QC & Mr Nicholas Fewtrell (instructed by Hill Dickinson) for DefendantsHearing Hearing dates: 16 - 20 March 2009
JudgmentMr Justice Jack :Introduction
[1]The defendants in this action are the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The claim is for damages arising from the alleged sexual abuse of the claimant when a boy by an assistant priest, Father Clonan, serving at the Church of Christ the King in Coventry. Two other defendants were named on the claim form. The first was the Archbishop of Birmingham. It was later agreed that naming the Archbishop as a defendant was unnecessary in view of the inclusion of the Trustees as second defendants, and so the action against him was stayed by order of 16 April 2007. The third defendant was Pitt House Schools Limited. That company ran two schools in Devon which the claimant attended in his teens, at which he alleged that he was sexually abused. The action against the company was stayed by order of 6 March 2009, which was 10 days before the trial began. No recovery was made by the claimant from the third defendant: no information has been provided as to why the stay was agreed.[2]By order of 27 April 2007 it was ordered that the identity of the claimant should not be disclosed and that he should be referred to as Maga in all documents. The Sexual Offences (Amendment) Act 1992 prohibits the publication of the identification of a person against whom it is alleged that a sexual offence has been committed. I will refer to ‘the claimant’.[3]The claimant was born on 8 October 1963, and is now 45. He was a premature baby weighing 4 lbs 10 ozs at birth. Between 6 and 22 November 2003 he was in hospital suffering from laryngeal stridor, or narrowing of the larynx. The consultant did not think that he would live. He had to be resuscitated. He was given oxygen. It is probable that the anoxia which he then suffered caused brain damage. He was recognised at an early age to be educationally subnormal, or, using the modern term, to have a learning disability. He also suffered from epilepsy, which has been controlled by drugs. There is no record of his IQ having been tested since his early years. It is thought be about 70. He cannot read or write. The Official Solicitor acts as the litigation friend of the claimant, the claimant being a ‘patient’ for this purpose.[4]An outline of the relevant events is as follows. In 1968, when he was 5, the claimant went to the Alice Stevens School, which was a school for children with learning difficulties. In June 1972 Father Clonan was ordained priest and appointed second assistant priest at the Church of Christ the King in Coundon, Coventry. The claimant lived within that parish, but he and his family were not Catholics. The priest in charge was Father McTernan (who had been ordained in 1942). It is alleged that in about 1974 Father McTernan was informed by the parents of another boy, M, that he had been abused by Father Clonan. In 1974 the claimant became 11. In a letter dated 27 November 1975 a child psychiatrist said of the claimant:
‘There seems little doubt that this boy in addition to be educationally subnormal is very disturbed.’
He was then 12. It is uncertain when, if it did, the alleged abuse to the claimant by Father Clonan began, or how long it continued. One piece of the claimant's evidence suggests that it must have begun at least before he reached puberty. Another piece of his evidence shows that it happened while his father was still alive. It is pleaded as occurring over ‘a period of many months in about 1976.’ He reached 13 in that year. It was in 1976 that his father died. His father had opposed a residential school, which had been recommended because he was ‘out of control’, and in May 1976 the claimant moved to the Three Spires School, a school for pupils with moderate learning difficulties. In May 1977 when 14, with his mother’s agreement he moved to Pitt House School in Torquay, a residential school for ‘maladjusted children’. Later he moved to a second Pitt House School in Chudleigh, also in Devon. He alleges that he was sexually abused at these schools.[5]In 1988 Simon Grey told staff at Grendon Underwood Prison that he had been abused by Father Clonan. If the police were informed, the matter was not strongly pursued. In July 1992 the parents of a boy, X, told Father Clonan that X had said that he had abused him. Father Clonan telephoned Father McTernan to inform him of this and that he was leaving. He went to Ireland where he was in hospital for a period. His whereabouts thereafter are unknown, although there have been suggestions that he was in Australia. He would now be 66. He may no longer be alive. In September 1996, 4 years after the flight of Father Clonan, Father McTernan died. He had been appointed to Monsignor in 1980. In December 2000 following publicity concerning the allegations of Simon Grey the Archdiocese published a statement which included the view that ‘There are serious reasons for believing that this man [Father Clonan] is a danger to children.’ The claimant was unaware of these events.[6]On 30 November 2000 the claimant made a statement to the Devon & Cornwall Constabulary concerning events at the Pitt House Schools. In October 2003 he learnt from a Midlands Today television programme that Simon Grey had recovered damages from the Catholic Church for the abuse he had suffered from Father Clonan. He learnt that it had been alleged that a complaint had been made to Father McTernan about sexual abuse by Father Clonan in 1974. He decided that he wanted to take it up and went with his social worker to the police who put him in touch with his present solicitors. They also acted for Simon Grey. It was not, however, until 31 July 2006 that a letter of claim was sent to the Archdiocese. It alleged ‘In about 1976 when [the claimant] was 12 or 13, he was sexually assaulted by Father Clonan on about 8 occasions. The abuse continued for several months.’ The claim form was issued on 26 September 2006.[7]The claimant’s case against the Church, as I will refer to the defendants, is put in two ways. First, it is said that they are vicariously liable for the assaults committed by Father Clonan. Second, it is said that the Church was negligent because the complaint alleged to been made concerning Father Clonan in about 1974 was not followed up so that he was left free to abuse others including the claimant. It is accepted on behalf of the Church that there could be circumstances in which the Church would be liable vicariously for sexual assaults committed by Father Clonan, to take a strong example, if he had assaulted an altar boy after a service: but it is denied that any assaults on the claimant were committed in circumstances giving rise to such liability. It is denied that the making of the alleged complaint in respect of M gave rise to a duty on the part of the Church to the claimant. It is accepted that if there was such a duty and Father McTernan was negligent in his handling of the complaint, that negligence is to be treated as the negligence of the Church.[8]The issues in the action fall under three heads: limitation, liability, and damages. I will consider them in turn.

B. Limitation

[9]It is sought on the claimant’s behalf to overcome the difficulty that the alleged abuse took place over 30 years ago in three ways. It is said first that the claimant has at all times been under a disability within the meaning of section 28(1) of the Limitation Act 1980, and the period of limitation has never begun to run. Second, it is said that the claimant can rely on sections 11 and 14 of the Act in respect of the claim in negligence, although not in respect of that based on vicarious liability. It is said that the date of knowledge for the purpose of section 11 was the date of the television programme which the claimant saw in October 2003. Lastly, in respect of the claim based on vicarious liability and, if the effect of section 11 is to bar proceedings in negligence, a declaration is sought under section 33 of the Act that section 11 shall not apply. If none of the foregoing can be relied on, any cause of action would have become barred by the operation of sections 28 and 38(2) after three years from the date on which the claimant ceased to be an infant. He became 18 on 8 October 1981.

(i) Disability

[10]The issue of disability is to be decided under the law as it stood on 26 September 2006, when the proceedings were commenced. The Mental Capacity Act 2005 amended the relevant provision of the Limitation Act 1980, but it did not come into force until 1 October 2007. So the issue is to be determined in accordance with a provision which has since been amended.[11]Section 28(1) of the Limitation Act 1980 provided and still provides that, if on the date a cause of action accrues a person is under a disability, the action may be brought at any time before the expiration of 6 years from the date when he ceased to be under a disability. By section 28(6), if the action is one to which section 11 – personal injuries, applies, the period is three years rather than six. Section 38(2) provided:
“38(2) For the purposes of this Act a person shall be treated as under a disability while he is an infant or of unsound mind.”
Section 38(3) provided:
“38(3) For the purpose of subsection (2) above a person is of unsound mind if he is a person who, by reason of mental disorder, is incapable of managing and administering his property and affairs; and in this section “mental disorder” has the same meaning as in the Mental Health Act 1983.”
The wording of section 38(3) set out above is as amended by the Care Standards Act 2000, but the amendment is not material.[12]The last words of section 38(2), ‘of unsound mind’, were replaced by the Mental Capacity Act 2005 – section 67(1) and Schedule 6, with the words:
“lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings.”
Section 38(3) was likewise repealed, for it was not longer needed. The Mental Capacity Act provides by section 2(1) that; “2(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” What is the relevant “matter” for limitation purposes? Section 38(2) as amended provides that it is the conduct of legal proceedings. The 2005 amendment does not distinguish between the capacity to commence proceedings and so prevent limitation running and the capacity to conduct of proceedings. It directs attention simply to the capacity to conduct legal proceedings, namely to “make a decision for himself in relation to” legal proceedings.[13]In considering the application of section 38(3) I can begin with Kirby v Leather [1965] 2 QB 367. The claimant in that case had suffered severe brain damage in a road accident and his behaviour became that of a small child. He began an action to recover damages after the expiry of the normal limitation period. The trial judge held that he had been at all times under a disability, namely unsoundness of mind, and so his right of action was preserved, but he held that negligence was not established. The Court of Appeal held that the other driver was two thirds to blame for the accident, and upheld the judge on limitation. The relevant provisions as to limitation were to be found in the Limitation Act 1939. Section 31(2) of that Act provided that a person should be deemed to be under a disability while he was an infant or of unsound mind. It did not define unsound mind. Lord Denning MR stated at page 383:
“So the question comes down to this. Was David Kirby, at and after 8.5 p.m. on May 15 1959, of unsound mind? The words “unsound mind” in a statute must be construed in relation to the subject-matter with which the statute is dealing. In Whysall v Whysall, Phillimore J held that the phrase “unsound mind” in a statue relating to dissolution of marriage must be taken to describe a mental state which would justify a dissolution of the marriage tie, that, mental incapacity such as to make it impossible for a couple to live a normal married life together. So here it seems to me in this statute a person is “of unsound mind” when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do. It is similar to the test where a guardian ad litem or a next friend is appointed under the new R.S.C., Ord. 80, r. 1. That states that a person under a disability means “a person who by reason of mental disorder is incapable of managing and administering his property and affairs.”
So here it seems to me that David Kirby was of unsound mind if he was, by reason of mental illness, incapable of managing his affairs in relation to this accident.”[14]Danckwerts LJ agreed that the test should be that in RSC Order 80. Winn LJ gave a concurring judgment. So section 28(3) of the 1980 Act adopted the Court of Appeal’s interpretation but did not include words to the effect of ‘in relation to the accident’ in Lord Denning’s phrase ‘incapable of managing his affairs in relation to the accident as a reasonable man would do.’[15]In White v Fell, unreported, 12 November 1987, which is only available to me from its citation in Masterman-Lister v Brutton [2003] 1 WLR 1511, Boreham J had to apply section 38 of the 1980 Act. He stated:
“The expression ‘incapable of managing her own affairs and property’ must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided . . . It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice. . . Secondly, having identified the problem it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately. . . Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive.”
In the context the problem in respect of which the plaintiff needed advice was the possibility of a claim and the progression of the claim, and the advice she needed to understand was in relation to that.[16]In Masterman-Lister the claimant had suffered serious injuries in a road accident in 1980 when he was17. In December of that year he had started an action by his father as next friend, which he adopted when he became18. In 1987 after receiving advice from counsel and solicitors he agreed a compromise of his claim. In 1993 he issued a writ against his former solicitors alleging that he had been negligently advised. It was not served until 1996. Issues arose as to whether he had been a patient under the Rules of the Supreme Court at the time of the settlement and so the settlement had required the approval of the court, and whether he was a patient under Part 21 of the CPR for the purpose of his new action. An order was made for the trial of an issue whether the claimant had been a patient within the meaning of the RSC or CPR at any time from the date of his accident to the present. Wright J held that he had not. The corresponding point of limitation arising in relation to his action against solicitors was left undecided. Although I cite the case for its discussion of the law, it is worth recalling the primary facts. The claimant suffered very serious injuries including a serious head injury on 9 September 1980. He had then been working as an engineering apprentice. He was in hospital for three months. He returned to work in June 1981 but was only able to perform routine clerical work, which he continued to do until March 1989. He had barely worked since. The action in which he asserted that he had been negligently advised was settled in September 1987. The claimant had then been keeping a diary in which he recorded a discussion with his father about accepting an offer or delaying. Wright J held that at all times after the claimant reached 18 he had capacity in accordance with the Rules of the Supreme Court and the CPR as appropriate. His decision was upheld by the Court of Appeal.[17]The court was concerned with the claimant’s capacity to conduct litigation in his own name, and so mainly concerned with RSC Order 89. Rule 1 provided:
“‘patient’ means a person who, by reason of mental disorder within the meaning of the [Mental Health Act 1983], is incapable of managing and administering his property and affairs.”
This mirrors section 38(3) of the Limitation Act.[18]In giving the leading judgment in the Court of Appeal Kennedy LJ referred to three situations in which the issue of capacity arose in that case. One was whether the claimant might in due course become a patient whose damages should be managed by the Court of Protection. One was his capacity to sue. One was limitation. He recognised that the answer might be different at different times and for different purposes. Thus a person who was a patient for the purpose of the rule and so was required to sue by ‘his next friend’ might not be a patient for the purpose of the Court of Protection.[19]In paragraph 17 Kennedy LJ stated, as was common ground, that all adults were presumed to be competent to manage their property and affairs until the contrary was proved. The right of a person to manage his own property, and to conduct his own litigation, was not to be taken away lightly. He referred to Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.[20]In paragraph 18 and at the start of his discussion how capacity was to be decided Kennedy LJ cited the passage from the judgment of Boreham J which I have set out. He continued:
“So the whole test was related to the individual plaintiff and her immediate problems. That was the approach adopted by Wright J in the present case, and before us everyone has accepted it to be the right approach.”
[21]He stated that the position might be different with capacity and the Court of Protection, where the judge must consider the whole of property and affairs of the alleged patient, but if he was shown to lack capacity to manage a significant part, that might be sufficient. He cited from the judgment of Wright J under appeal that the court should only take over an individual’s function of decision making:
“when it is shown on the balance of probabilities that such a person does not have the capacity sufficiently to understand, absorb and retain information (including advice) relevant to the matters in question sufficiently to enable him or her to make decisions based upon such information.”
[22]In paragraph 27, following his consideration of the submissions of counsel, Kennedy LJ stated:
“What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made. It is not difficult to envisage plaintiffs in personal injury actions with capacity to deal with all matters and take all “lay client” decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the plaintiff is to be regarded as a patient from the commencement of proceedings. Of course, as Boreham J said in White’s case 12 November 1987, capacity must be approached in a common sense way, not by reference to each step in the process of litigation, but bearing in mind the basic right of any person to manage his property and affairs for himself, a right with which no lawyer and no court should rush to interfere.”
[23]Chadwick LJ stated in paragraph 58 of his judgment:
“The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained.”
[24]He then turned to the citation of authority. He returned to the point in paragraph 62:
“The authorities to which I have referred provide ample support for the proposition that, at common law at least, the test of mental capacity is issue-specific: that, as Kennedy LJ has pointed out, the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has capacity falls to be decided. It is difficult to see why, in the absence of some statutory or regulatory provision which compels a contrary conclusion, the same approach should not be adopted in relation to the pursuit or defence of litigation.”
[25]In paragraph 75 he stated:
“For the purposes of Order 80 - and now - CPR Pt 21 – the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the Civil Procedure Rules, a litigation friend).”
[26]In Lindsay v Wood [2006] EWHC 2895 Stanley Burnton J had to decide whether a claimant was a patient within the meaning of Part 7 of the Mental Health Act 1983 and CPR Part 21. The issue was thus whether the claimant had the capacity to conduct the proceedings, which was the issue in Masterman-Lister. He took Masterman-Lister as providing the relevant law. The evidence which showed that the claimant’s state consequent on brain injuries in a road accident was considerably worse than that of the claimant here. In paragraph 46 he stated :
“46. The first matter I have to address is the degree of complexity of the affairs of the Claimant. There are two areas of his affairs to be considered for these purposes. The first is the litigation. There are likely to be offers of settlement, which will require consideration by the Claimant or someone on his behalf. The Claimant can of course be guided by legal and other professional advice; but he should be able to understand and weigh the advice. Doubtless there is a theoretical possibility of an offer so generous that its acceptability is obvious. It is, however, more likely that a lump sum offer will be less than the optimistic estimates of the Claimant’s advisers. They should be able to advise the Claimant of the risks of his rejecting the offer, and the risks of his accepting it: in what areas of anticipated costs there may be shortfalls, and what would happen if the award proves inadequate. There may be an offer of periodical payments, or more likely an offer of a lump sum plus periodical payments. And thirdly, there may be more than one form of settlement offered at the same time. The decisions to be made may not be straightforward, and may not admit of unequivocal advice, of the “In my view you should do this” kind. The Claimant may have to weigh up the advantages and risks of one course as against the other.”
He concluded that ‘the claimant is unable to deal with the advice he is likely to receive or to give rational instructions based on that advice. I therefore find that he is a patient within the meaning of Part VII of the 1983 Act and therefore within CPR Part 21.’[27]The issue for the court in Masterman-Lister was the claimant’s capacity to conduct proceedings. It may be questioned whether in practice that is the same as the capacity to commence proceedings. It was agreed before me that the test was ‘issue specific’, and there can be no doubt about that. Miss Elizabeth-Anne Gumbel QC submitted for the claimant that the issue was the claimant’s ability to conduct the litigation. Mr Edward Faulks Q.C. submitted that:
“The relevant issue is either the capacity to commence proceedings or, alternatively, the capacity to conduct proceedings. It is difficult to think of many circumstances in which the answer to those questions would be different.”
He submitted that here the answer was the same.[28]I have concluded that it will usually be wrong to distinguish between the capacity to conduct proceedings after an action has been commenced, and the capacity to conduct a claim up to and including the commencement of the action. The commencement of the action is a part of the conduct of the action, but it is also that which stops limitation running. So there is no neat divide. Secondly, much the same problems as to taking advice and making decisions about settlement may arise prior to the commencement of proceedings as they may after. It is clear that a person is under a disability, or he is not, depending on his capacity to deal with these matters should they arise. He does not become under a disability only if they arise and he cannot cope.[29]It is agreed that in accordance with Masterman-Lister among other cases the burden is on the claimant to establish that on the balance of probabilities he was under a disability. It is agreed that, if he was incapable of managing his affairs within the meaning of section 38(3), that was by reason of mental disorder within the meaning of the Mental Health Act 1983. I turn now to the evidence.[30]The claimant gave evidence. It had been ordered that he should give his evidence by video link. On the first day of the trial the link was of such poor quality that the attempt was abandoned. On the next morning a second attempt was made with the claimant at a different venue. That also failed. The claimant then came to the large conference room where the court was sitting and gave his evidence. It was plain that this was difficult for him. I cannot tell how much better he might have performed had he felt more comfortable with the situation. A striking feature of his evidence was that he was quite unable to deal with questions as to contradictions both in his evidence and as to what he had said on other occasions. It had been suggested that he could appear from his speech as more intellectually able than he is, but his evidence suggested a considerable intellectual disadvantage.[31]In his witness statement he said that he saw a television programme about Simon Grey in October 2003 and got in touch with the police in Coventry, who put him in touch with solicitors. He said that when he met with his solicitors on 25 February 2004 that was the first time he knew that he had a right to make a claim. This was after he had given the police a statement about abuse at Pitt House. It appears that as a result of seeing the programme he spoke to his social worker about the abuse that he had suffered, and the social worker went with him to the police. I accept that until this time the claimant had not appreciated that he might have a civil claim. However there are likely to have been people without intellectual difficulties who would not have known that childhood sexual abuse would give rise to a claim for compensation. One aspect here is the claimant’s mental capacity to appreciate the possibility of a claim.[32]The claimant also gave evidence about a claim that he had made for compensation for injury sustained in an accident involving a taxi. The claim was brought through Claims Direct. They describe themselves on the Internet as ‘Solicitors Plain & Simple’. There was no evidence as to how he instructed Claims Direct, but he said that he spoke to them and then spoke to a solicitor. He said the solicitors got the money. The claim was settled for £2,500, which was apparently the defendant’s first offer. The claimant accepted it because he was being pressed by a money lender. He simply gave the money to the money lender, who appears to have been satisfied. He did not know what he owed. The episode was discussed by the claimant at a therapy session on 29 August 2006. He then said that it had happened years ago, when he was living in a caravan.[33]At a core group meeting on 26 April 2006 the claimant talked about a decision which had been made not to give him a new social worker. He said he telephoned his advocate about it and had also been to the Citizens Advice Bureau who had given him the address of the Ombudsman so he could make his complaint. At another core group meeting on 8 March 2007 the claimant said that he had been to the Citizens Advice Bureau for help with his finances.[34]A general practitioner’s note of 3 October 1997 recorded that the North Warwickshire Health Trust had previously been appointed to manage his affairs, and he wanted a letter to say that he could now manage himself. This contrasts with a note of 10 July 1997, three months earlier, when the claimant was saying he could not live in the community alone and needed more support.[35]A report by a psychiatrist, Dr McGovern, a member of the community learning disability team, undated but apparently prepared in 1995, recommended that the claimant should have assistance from Social Services with budgeting, finance and activities of daily living. It recorded that he was very socially isolated. It also recorded that he was manipulative. A report dated 6 November 2006 by Dr Cassidy, a consultant psychiatrist for adults with learning difficulty, stated that the claimant needed outside help with money management. In about November 2007 a partner in Newsome Vaughan, solicitors, was made the claimant’s appointee to manage his financial affairs. He was in debt and having difficulties with debt collectors. The arrangement lasted until July 2008. He was very demanding and difficult to help. Although the evidence is unclear, I understand that for much of his adult life his benefits have been managed by social services so he receives what he needs at particular times. This has not stopped him incurring debts.[36]Reliance is placed on the claimant’s behalf on the fact that in November 2006 he told his treating psychiatrist that his case would soon be settled for £750,000 and if so he would not need to attend court. It is very possible that he had been told that the Church would be likely to settle, given previous settlements, and that he would not then have to attend court. So what he said to the psychiatrist was only inaccurate to a degree, and may well have reflected the advice he had received, but inaccurately.[37]Something which emerges clearly from the records is that the claimant finds ordinary social contacts difficult; he has no friends and is lonely. He uses social workers and others who support him for the human contact they provide. In 1998 he did not keep an appointment for an intelligence quotient test to find whether he had a classified learning disability. He has never been tested since a child. I accept Dr McGovern’s view that the claimant is manipulative. He understands how he can use his disability to his advantage and on occasion does so. That is something which can also be seen from the manuscript notes of his therapy.[38]As I have stated, the claimant is represented in the litigation by the Official Solicitor on the ground that the claimant is a ‘patient’. The claimant’s general practitioner, Dr Harjit Singh, completed a certificate for that purpose on 19 September 2005. He gave his reasons for certifying that the claimant did not have the mental capacity to manage his property and affairs as the claimant’s ‘mild learning disability, IQ around 70, epilepsy, inability to read or write, difficulty in remembering instructions’ and that he had a social worker and regularly attended the community learning disability team. Dr Singh stated ‘He will not understand legal proceedings. He has got an IQ of around 70.’ On 3 April 2007 Dr Singh wrote to the claimant’s solicitors saying that:
“[The claimant] is educationally subnormal with learning difficulties. He cannot differentiate between left and right, says he cannot read and write, and he has got a very limited view of the problems and dangers around him. His thinking is short span. It is sometimes difficult to have a rational conversation with him. I feel that [the claimant] is not capable of looking after himself and needs a sympathetic individual to keep and eye on him. I personally think that Social Services should be able to help him”
On 10 April 2007 Dr Singh completed a medical certificate for the Court of Protection. He said that the claimant had a very limited ability to appreciate his surroundings. He said that he was capable of understanding that an application was being made to appoint a receiver. The suggestion that the claimant has a limited ability to appreciate his surroundings is not supported elsewhere.[39]I did not hear any evidence as to what part, if any, the claimant has played in the advancement of his claim, and how far he has understood what has been happening. The decisions, of course, will have been made by the Official Solicitor.[40]Dr Jonathan Shapiro was called as a psychiatric expert on behalf of the claimant. On page 16 of his report Dr Shapiro considered whether the claimant ‘fulfils “patient” status in the legal sense’. He reviewed the claimant’s ability to manage his own affairs, in particular money. He concluded:
“In summary, there seems little doubt in my opinion that [the claimant] constitutes a “patient” within the legal meaning of the term, insofar as he is not able to manage his own affairs adequately, despite having a reasonable level of understanding of what would be required of him in theory. It should however be made clear that his difficulties in this respect are entirely due to his learning difficulties, which are constitutional, and are not in any way related to the difficulties he has resulting from his experiences of sexual abuse.”
[41]Dr Shapero gave a further view in a letter of 3 March 2009. He had been asked to comment on the claimant’s capacity to make decisions in relation to giving detailed instructions in the case, particularly in respect of proposed offers of settlement. He thought that the claimant would have great difficulty in comprehending sums of the order involved in a settlement. He next considered the test under the Mental Capacity Act. He concluded that the claimant was incapacitated from making decisions having a bearing on the outcome of the proceedings, in particular as to settlement.[42]In his oral evidence Dr Shapiro sad that in his opinion the claimant was not capable of dealing with the complexity of litigation in full. He thought that the claimant initially gave the impression of understanding more than he did. If he was given complex information he could not retain it, and he did not have the capacity to understand it. He could make simple decisions but with anything more complex he could not manage in any logical way to reach a logical decision. In cross-examination he said that he did not think that the claimant could follow whether or not to accept offers of settlement.[43]Professor Declan Murphy fulfilled the same role for the Church. He concluded:
“In my opinion, at the time of my assessment [the claimant] did fulfil the criteria of a “patient” under the terms of the Mental Health Act. That is, he is incapable by reason of mental disorder of managing and administering his property and affairs.”
[44]In a letter dated 14 November 2008 Professor Murphy referred to the Masterman-Lister decision, a copy of which had been sent to him. He stated his view that the claimant had ‘the insight and understanding of the fact that he has a problem in respect of which he needs advice, and that in the past he instructed an appropriate adviser in such a way that enabled them to understand his problem and to advise him appropriately.’ He said that the claimant had lived fairly independently and had sought advice and help. He said ‘If this were to be the legal basis upon which I am asked to decide as to whether [the claimant] lacks capacity, then given the new information you have sent me, I would change my opinion to say that on the balance of probabilities, [the claimant] does not lack capacity. Also, [the claimant] clearly can make decisions as to whether to pursue a case, and he would be able to do this (in my opinion) without assistance.’ The ‘new information’ which he referred to was not identified. It may just have been a way of referring to Masterman-Lister.[45]In his oral evidence Professor Murphy stated that he felt the claimant would be able to take part in litigation with support: he could not do so unaided and he would need help that was explained simply and may be more that once. Professor Murphy said in his cross-examination that, as to the litigation, the claimant could follow appropriate advice: he would need to be given very simple clear options with advice as to which was best.[46]Dr Shapiro and Professor Murphy, together with Dr Gill who had been instructed on behalf of Pitt House Schools Limited, made a joint statement. In the second part they answered 16 questions which had been put to them. Question 15 asked:
“Since the age of 18, has [the claimant] been a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering his own affairs?”
They answered:
“Dr Gill and Professor Murphy would say that this is somewhat debatable. He would be a borderline case. He does fulfil the definition of a patient to this purpose, but he would not be liable for detention under the Mental Health Act because he fails the treatability test and compulsory treatment in hospital would not be considered likely to alleviate or prevent deterioration of his condition. Dr Shapero would say that in his opinion [the claimant] fails to reach the severity required for detention under the Mental Health Act, but nonetheless fulfils the requirement to be a “patient” within the meaning of the Act, as outlined in his report. [The claimant’s] mental impairment is a major factor in causing him difficulty in managing his finances. There is no link between his intellectual limitations and any possible experiences of abuse.”
It was agreed that this answer related to the claimant’s ability to manage money.[47]Question 16 asked:
“If [the claimant] has, at times, been capable of managing his affairs, what has been his general level of understanding and ability to conduct difficult litigation?”
This was answered:
“There is no clear link between capacity to manage finances and capacity to instruct lawyers and follow the process of litigation. Certain allowances may have to be made in conducting his case due to his limited intellect, but overall all the experts agree that he has a sufficient understanding for the purpose.”
[48]Dr Shapiro said in evidence that he had been then thinking more of a criminal trial, and that he had no doubt the claimant did not have capacity to conduct the present litigation. The wording of the answer seems inconsistent with the idea of a criminal case.[49]Of the three situations in which capacity can arise in connection with personal injury litigation, I find that the easiest to answer here is that which arises in connection with the Court of Protection. It is not a question which I have to determine, but I am quite satisfied that the claimant does not have the mental capacity to manage a substantial sum of money. It is more difficult to decide whether he has the mental capacity to conduct his own litigation.[50]The recovery of compensation through Claims Direct, the claimant’s use of the Citizens Advice Bureau and possibly the claimant’s obtaining of advice in relation to the present claim can be used to suggest that the claimant had capacity. He is plainly in a better position than the claimant in Kirby v Leather who was unable to understand fully what had happened to him and had no concept of commencing proceedings. But, taking the Claims Direct facts, he accepted the first offer and then gave all the money to a money lender in ignorance of what he owed. The last part in particular suggests a lack of capacity.[51]As I have indicated, I do not think that the issue of capacity for the purpose of limitation is straightforward. In Kirby v Leather it was reasonably clear cut that there was no capacity. In Master-Lister again I think that the answer was clearer than it is here.[52]I have to consider what I know about the claimant’s abilities from the evidence I have heard about his life. I have to consider the expert evidence. I may say that some of it was not particularly directed to the issue I have identified. I have to consider the impression which the claimant made on me, bearing in mind the conditions under which I was able to observe him.[53]I have concluded that, looking at the litigation process from when the claimant first saw solicitors, he is likely to be unable to deal rationally with the problems that have arisen or will arise in the course of it, and that he does not have the capacity to conduct legal proceedings. That conclusion is largely supported by the aspects of his history which I have set out. In the end I prefer Dr Shapiro’s view on this to that of Professor Murphy. I find support from my conclusions in the concern which I would have if it were the claimant who was responsible for making decisions in the litigation instead of the Official Solicitor. I am therefore satisfied that the claimant was of ‘unsound mind’ for the purpose of section 38(2) of the Limitation Act as it the stood prior to the issue of the proceedings. (ii). Sections 11 and 14[54]In the view of my conclusion as to capacity the claimant does not need to rely on these sections. I deal with them in case my decision as to capacity is subsequently held to be wrong. In A v Hoare [2008] 1AC 844 the House of Lords held that section 11 of the Limitation Act 1980 applied to intentional injuries such as sexual assaults. The section provides that, where it applies, the limitation period is three years from the later of the date on which the cause of action accrued, and ‘the date of knowledge’. Section 14 defines ‘the date of knowledge’. By section 14(1) it is the date on which the claimant:
“first had knowledge of the following facts – (a) that the injury in question was significant; and (b) that the injury was attributable in whole or part to the act or omission which it is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant; and (d) [irrelevant] and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”
Subsection (3) provides:
“(3) For the purpose of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire – (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.” (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.”
[55]The claimant’s case under the sections was put by Miss Gumbel in this way. She accepted that the date of knowledge in relation to the claim made on the basis of vicarious liability was at the time of the abuse. So section 14(2) was relied on only in respect of the claim in negligence. The claim in negligence relies on evidence that in 1974 M’s parent’s reported to Father McTernan that M had been abused by Father Clonan but Father McTernan took no action to prevent Father Clonan continuing as an abuser. That was not known to the claimant until October 2003 when he learnt in relation to Mr Grey’s claim that abuse had been reported to Father McTernan in 1974. Father McTernan’s conduct in 1974 is an ‘act or omission’ within the meaning of section 14(1)(b). The claim in negligence raises questions of fact and of law. I assume for the purpose of considering the application of section 14 that the facts are as asserted on behalf of the claimant.[56]I was referred by Mr Faulks to Dobbie v Medway Health Authority [1994] 1 WLR 1234. There the claimant had an operation in 1973 to remove a lump removed from her breast. The surgeon thought that it was cancerous and carried out a mastectomy. It would have been possible for the lump to have been tested to see if it was malign before the decision as to mastectomy was made. When it was tested soon after the operation it was found to be benign. The claimant suffered severe psychological illness as a result of the removal of her breast. In 1988 she learnt that, contrary to what she had been told until then, the surgeon might have been negligent. It was held that her action was barred by limitation because following the operation and the onset of her illness she knew all the facts required by section 14(1). What she did not know was that the surgeon might have been negligent. That could not help her by reason of the concluding words of the subsection. I think that the circumstances in the case are essentially different to those here. What the claimant says he did not know is that Father McTernan had received a complaint and had taken no or limited action. That fact enables him to mount his case in negligence. He is not saying that he knew the facts but not that there had been negligence. I record that I was also referred to other authorities, but I have not found them helpful.[57]In his witness statement the claimant stated in paragraph 25, that after he had been indecently assaulted by Father Clonan on a visit to Birmingham, he told Father McTernan who said ‘Don’t be silly, I will tell your mother you are playing up.’ He stated that Father Clonan later asked him why he was making up tales, and, when the claimant said that he was not, said that the claimant should not say anything to his mother or friends if he wanted to keep his job cleaning Father Clonan’s cars. Mr Faulks submitted that therefore the claimant had always known that Father McTernan had received a report about abuse by Father Clonan, and so could always have advanced his case in negligence on that basis.[58]In cross-examination the claimant repeated what was in his witness statement (he cannot read), and also said that this was his only contact with Father McTernan. He said that the abuse continued afterwards – which is consistent with his witness statement. He next said he kept out of Father Clonan’s way and that he was not abused afterwards. He said ‘Speaking to Father McTernan, that was the end of it.’ The inconsistency in what he was saying seemed lost on him.[59]All agree that the claimant is what the psychiatrists called ‘an unreliable historian’. I have been concerned whether I should accept that the claimant spoke to Father McTernan. This is because the claimant is so plainly unreliable in some of what he says, and because it may seem an unlikely scenario. He would then have been 11 or 12. He now knows that another complaint is alleged, and he might have added a complaint by himself to his evidence. I am satisfied from his evidence that he did know who Father McTernan was. I have concluded that the probability is that he did speak to him. I find also that Father McTernan must have spoken to Father Clonan who in turn had a conversation with the claimant along the lines of the claimant’s evidence. The instruction to keep silent or he would lose his well paid job with cars rings true.[60]The complaint which was made to Father McTernan in about 1974 was a more serious complaint because it was made by the father and mother of M. Father McTernan went to their house to hear what they had to say. The claimant can assert the abuse he suffered was in part attributable to what Father McTernan then did or failed to do. That brings him within section 14(1)(b) because he did not know of it. Whether the case in negligence made on this basis can succeed in fact and law is a different question to the limitation question. The limitation question is to be answered in favour of the claimant: his case in negligence would not be barred by section 11.

Section 33

[61]If my conclusion as to capacity is wrong, section 33 is needed by the claimant in respect of his claim that the Church is vicariously liable for the torts of Father Clonan, and as a back up, as it were, in respect of his claim in negligence. The section is headed ‘Discretionary exclusion of time limit for actions in respect of personal injuries or death'. It provides:
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which– (a) The provisions of section 11 ….. of the Act prejudice the plaintiff …..; and (b) any decision of the court under this subsection would prejudice the defendant ….. ; The court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. (2) [Irrelevant] (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to- (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 ….. ; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
Subsections (4) to (7) are immaterial. “(8) References in this section to section 11 …. include references to that section as extended by any of the preceding provisions of this Part of this Act or by any provision of Part III of this Act.” (a) The provisions of section 11 ….. of the Act prejudice the plaintiff …..; and (b) any decision of the court under this subsection would prejudice the defendant ….. ; (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 ….. ; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”[62]Section 33 is in Part II of the Act as is section 28. So references to section 11 are to be read as references to section 11 as extended by section 28 – which brings in the claimant’s disability by reason of age. Section 33 requires me to consider whether it would be equitable to allow the action to proceed having regard to two opposing considerations. One is the prejudice to the claimant by his action being otherwise bared. The other is the prejudice to the Church caused by disapplying the limitation period. The one is the loss of the claim, and the other is the loss of the limitation defence.[63]In Horton v Sadler [2007] 1AC 307 the House of Lords held that ‘section 33 of the 1980 Act conferred a wide and unfettered discretion empowering the court to disapply the application of section 11 where it appeared equitable to allow an action to proceed, having regard to the degree to which the parties would be prejudiced and taking into account all the circumstances of the case and the matters listed in section 33(3)’ – from the headnote.[64]In A v Hoare[2008] 1 AC 844 Lord Brown gave the following guidance as to the application of section 33 in sexual abuse cases:
“85. First, insofar as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at para 52, that is likely to bear significantly upon the possibility of having a fair trial. 86. Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations—see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay. 87. Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that position.”
[65]In his recent decision in AB and Others v The Nugent Care Society, 30 January 2009, Manchester District Registry, where he had to determine the questions of limitation in four cases of alleged historic child abuse, Irwin J reviewed recent developments in the law relating to section 33. I will not repeat that exercise. It seems to me that in considering the exercise of the discretion three matters in particular merit attention, perhaps particularly the last: the conduct of the claimant, the conduct of the defendant and the possibility of now having a fair trial of the issues to which the claim gives rise. I should consider the questions which arise in relation to a fair trial without taking account of any view I have formed as to the outcome of the trial. So I should not decide, for example, that I accept that the claimant has been abused in circumstances rendering the Church liable, and take account of that in deciding how to apply section 33. The factors I have to consider in relation to trial are the increased difficulties which a trial 33 years after the alleged abuse poses for the Church. In assessing those increased difficulties it may be, however, appropriate to take account of the strength of the claimant’s case or the strength of particular aspects of it. In practical terms the distinction may become a narrow one: but it is nonetheless real.[66]The first specified matter which section 33(3) requires me to have regard to is the length of the delay on the part of the claimant and the reasons for it. The delay is very long, 30 years after the alleged abuse. The immediate reason for the claim not being brought soon after the abuse is that the claimant was a child and his family did not know of the abuse. When the claimant became adult he did not bring a claim because it did not occur to him that he might do so. But to say that presumes that the claim is genuine, rather than an invention. Because the bringing of claims for sexual abuse is a recent phenomenon it is questionable that the claimant’s learning difficulties had contributed to the delay: when he became aware of the possibility through a television programme he was put in touch with solicitors. The claimant went to solicitors in 2003 but the claim was not issued until 2006 and the trial was held in February 2009. I was not given any very satisfactory explanation for the delay between 2003 and 2006. But that delay, after so many years, has little effect. There is an overlap here with section 33(3)(e).[67]The second such matter is the extent to which, having regard to the delay, the evidence on either side is likely to be less cogent than if the action had been brought within the time allowed be section 11. By subsection (8) that is the time as extended by section 28. The time so allowed is three years after 8 October 1981, that is, 8 October 1984 – approximately 7 or 8 years after the abuse.[68]I will begin with the claimant’s evidence. The evidence on the claimant’s side relates to whether the abuse occurred, to the gravity of such abuse as did occur and the effect on the claimant. The position is complicated by his allegations that he suffered serious abuse at the Pitt House Schools, and the extent and effect of that requires assessment. There is no doubt that the claimant’s evidence is difficult to assess. He tends to build on and exaggerate events, and he fabricates. Thus, to take a fairly neutral example, he attributed to Father Clonan a whole stable of exotic cars, which he plainly did not have. But the Father did have at least a Triumph Stag, and I do not think it was challenged that the claimant used to clean it. These difficulties should on the whole work against the claimant, because he has to satisfy me of his claim. However the difficulties might work to the disadvantage of the Church because the lack of any precision could lead to, for example, a higher award than was in fact justified. The passage of time has not created these difficulties, but it has undoubtedly increased them.[69]The questions relating to the evidence that might have been called at any time on the part of the Church are very different. The first matter is whether the Church would ever have been in a position to call evidence as to whether the abuse occurred. It is clear from Father Clonan’s conduct in removing himself that they would never have been able to call him. That conduct strongly supports the case that he was an abuser. When Father Clonan told Father McTernan that there was an allegation against him, Father McTernan did not ask him what it was about. There was put in evidence an unsigned statement taken from Father McTernan by the police probably in 1992 in which he said ‘I had no reason to suspect that there had been anything untoward between M and Father Clonan. However, I must confess I feared the worst.’ In any event, it would be most unlikely that the Church would want to deny that Father Clonan was an abuser because of the subsequent claims which have been made which have, I understand, all been settled by substantial payments. I have already referred to and quoted from the statement issued by the Church in 2000:
‘There are serious reasons for believing that this man is a danger to children.’
Mr Faulks stated that the Church’s position was it could not be formally admitted that Father Clonan was an abuser, but neither was it denied. So I do not think that the passage of time has disadvantaged the Church on that aspect.[70]The Church does not accept that the claimant was among the boys abused by Father Clonan. There is a very strong case that the claimant had an association with Father Clonan in that he cleaned his car and did other jobs for him, and he went into Father Clonan’s room in the Presbytery. The Church would have been in a better position to challenge that nearer the time, but in my view they have lost little by not having the opportunity. If it is accepted that Father Clonan was an abuser of boys and there was an association between the claimant and the Father (and it must be asked, why), it is an easy step to accept the claimant’s evidence that he was abused. I do not think that the Church has ever been in a position to call evidence that Father Clonan did not abuse the claimant. I have already dealt with the increased difficulties of testing the claimant’s evidence as to the abuse and its extent, caused by the passage of time.[71]An essential part of the claimant’s case in negligence is the alleged complaint made to Father McTernan in 1974. The evidence as to this consisted of a witness statement made by M’s father dated 16 October 2007 in which he confirmed that matters stated in statements made by his wife and son in October 1992 were true in so far as they were within his own knowledge. The statement of the son, M, related the abuse he had suffered, which was not within his father’s knowledge and so was not accepted as being in evidence. The father had made a statement dated 6 October 1992, which in the 2007 statement he confirmed as true. He there described how his son told him that Father Clonan had touched him inappropriately and he had left a note for Father McTernan saying he wanted to talk with him. About two days later Father McTernan came to their house, and the parents saw him and told him what had occurred. Father McTernan said very little save to suggest that they might speak to Father Clonan. The father said there was little point in that. After a while Father McTernan left. They heard no more. “The matter certainly didn’t die in our household but it appeared to me to have died with Father McTernan.” The mother’s statement describes how Father McTernan at first made no comment but ‘just sat looking into the fire.’ In the statement taken from Father McTernan in 1992 it is stated; “I do know Mr and Mrs [M], who live in …. I cannot remember ever visiting their house and discussing with them any problem in relation to their son .. and matters concerning Father Clonan.”[72]A very strong case can be made that the parents of M would not have invented their complaint to Father McTernan. I do not consider that the Church has suffered any real disadvantage by the passage of time in this respect.[73]The third matter listed in section 33(3), (c), is the conduct of the Church after the cause of action arose, including its response to any requests for information – there were none. There is no relevant conduct until 1992 when Father Clonan left Coventry because an allegation had been made against him in respect of X. He went to Dublin and into hospital, and then disappeared. There was no evidence that the Church tried to find out from him what had happened. The explanation provided is that the police were conducting an investigation and the Church thought it appropriate to leave it to the police. The police were never able to question Father Clonan because he disappeared. The Church could not help with his whereabouts. Nonetheless some belongings were collected from the Presbytery by a friend and taken to Ireland. In a witness statement dated 13 November 2007 Monsignor Moran, the Vicar General of the Archdiocese of Birmingham since 1998, stated:
“It is also apparent from Father Clonan’s personal file that, when a parishioner approached Father McTernan in 1992 regarding Father Clonan’s alleged inappropriate behaviour with her son, Father McTernan promptly reported the matter to the then Vicar General, Monsignor Leonard. Monsignor Leonard died on 2 April 2003.”
When asked in cross-examination on what he based this statement Monsignor Moran said that he presumed that there must have been a message from Father McTernan. There was nothing in the personal file to the effect stated. The wording of the sentence is unfortunate. It would seem inevitable that Father McTernan would have made some report to his superiors at some point concerning Father Clonan’s departure on 17 July 1992. But what he said and whether it was prompt is unknown. If any record was made in the Diocesan office, it has not survived. Father McTernan’s witness statement to the police does not deal with this. His file has been lost. On 24 September 1992 Monsignor Leonard wrote to the Reverend W. Baker in Melbourne, Australia, saying that the Church had been unable to trace Father Clonan’s whereabouts since he left hospital in Dublin despite exhaustive enquiries. The next document disclosed by the Church is a local newspaper cutting dated 14 January 1994 concerning the payment by the Church for treatment for a victim of Father Clonan. The article records the church’s press officer, Father Farrell as saying that by paying the hospital fees the Church was not accepting responsibility and that ‘there was no indication of responsibility at all.’ The article states that it was understood that Father Clonan had applied for a visa for Australia and had instructed his Coventry solicitors to sell his house in Coundon and another owned by members of his family. The article was sent to the Archbishop by Father McTernan’s successor at the Church of Christ the King, Father Eamon Clarke. Father Clarke complained that he was not being kept informed and that “On the occasion of my appointment you assured me that the problem was over as there was no case to answer. With respect I think you were mistaken since not a week goes by without some rumour or allegation being made.” On 1 June 2000 Monsignor Moran wrote to Monsignor Hynes in Rockhampton, Queensland, saying that the police had information that in 1993 Father Clonan had applied to work in the Rockhampton diocese, and asking for help as to his whereabouts. He said:
“Archbishop Vincent Nichols wants to be seen to be co-operating with the police in relation to the protection of children and therefore, we feel obliged to help the police to find him if at all possible.”
An answer was received saying that the Bishop had a vague recollection of an enquiry from Father Clonan, but it had not proceeded.[74]I have already referred to the press statements issued in 2000 following publicity concerning Mr Grey’s case. The first was issued by Monsignor Moran on 24 July 2000 and needs quoting in full:
“In 1997 an adult approached the then Archbishop of Birmingham concerning an allegation of abuse by Father Clonan said to have occurred in the 1970’s. The matter had been a subject of detailed police investigation in 1992 but the police were unable to extradite him from Australia at that time. His present whereabouts are unknown although he is believed to visit Ireland. A writ was issued and lawyers were then involved by both the adult and the Diocese. Although no one at Archbishop’s House was, in 1970 made aware of the abuse, during the litigation the possibility emerged that an elderly and somewhat ill parish priest could have been aware that Clonan’s behaviour might have been questionable. The priest who has since died did not take steps to inform the Archbishop or to investigate. Leading Counsel’s advice was taken and the matter then settled amicably through solicitors. The settlement terms prohibit the Diocese from identifying the claimant or the details agreed with his solicitors. Likewise for the claimant. The Diocese profoundly regrets that Clonan so dreadfully betrayed the trust place in him by the family [and by his Religious Superiors]. Since then procedures have been put into place within the Archdiocese to ensure that all questions of possible abuse or irregular conduct are reported and investigated when they occur.”
As Monsignor Moran accepted in cross-examination, in the 1970s Father McTernan was neither elderly nor somewhat ill. The second press statement dated 27 December 2000 was as follows:
“The Most Reverent Vincent Nichols, Archbishop of Birmingham, and Monsignor Canon John Moran, Vicar General, have read the report “Punish the priest who ruing my life”, Evening Telegraph (December 19), with deep sorrow, regret and concern. Farther Christopher Clonan was a curate at Christ the King in Coventry but he has not been seen or heard of by the Archdiocese of Birmingham, which covers Coventry, since his disappearance during 1992. Monsignor Moran has cooperated with the police and made enquiries on behalf of Archbishop Nichols in attempts to locate Father Clonan, but without success. If the Archdiocese of Birmingham receives information about the location of Father Christopher Clonan this information will immediately be passed onto the police. There are serious reasons for believing that this man is a danger to children. Meanwhile, Archbishop Nichols and Monsignor Moran are will to meet, during January, with Simon Grey, and any other persons who allege Father Clonan sexually abused them. Please write to arrange an appointment. The Most Reverend Vincent Nichols, Archbishop’s House, 8 Shadwell Street, Birmingham B4 6EY. All correspondence will be treated in the strictest confidence.”
[75]The last paragraph of the second statement shows a substantial change of position from that taken in 1994. There is little evidence as to what the Church did in 1992. However what it did not do was to recognize that there was a problem in that Father Clonan’s conduct strongly suggested that the allegation against him was true, as Father McTernan at least suspected. It did not recognise the need to take steps to deal with it. Those steps would have involved trying to identify those who might have been harmed by Father Clonan, particularly within the Catholic congregation, and take such steps as could be taken to mitigate that harm. That would have been the responsible if uncomfortable course. Instead Father Clarke was told that ‘the problem was over as there was no case to answer.’ It does not seem to me to be an answer to that to say that the Church left the enquiries to the police, or that the police – who had not been able to locate Father Clonan and to question him, considered the case was not strong enough to secure a criminal conviction. Indeed the continuing interest of the police in Father Clonan suggests that they did think that the allegation might well be true. The attitude of the Church is also revealed by the judgment of Christopher Clarke J in A v The Archbishop of Birmingham [2005] EWHC 1361 (QB) where in paragraph 3 he records ‘The revelation of the abuse had severe consequences for his family. After they had spoken out against Fr Clonan the atmosphere in the community was such that his parents felt they had to move from Coventry to Northern Ireland’.[76]I conclude from this review of the conduct of the defendant Church after the cause of action arose favours the extension of the limitation period because the Church did not make enquiries and take steps, which, given its position, it should reasonably have taken.[77]The fourth matter listed in section 33(3), (d), is the duration of any disability of the claimant arising after the accrual of the cause of action. I have already referred to the effect of section 33(8), section 28 and the claimant’s minority.[78]The fifth matter, (e), is the extent to which the claimant acted ‘promptly and reasonably once he knew whether or not the act or omission of the defendant to which the injury was attributable, might be capable at that time of giving rise to an action for damages.’ I accept that the claimant did not have that knowledge until 2003. If he had known earlier, he would have gone to solicitors. As I have said, the proceedings could then have been started more quickly instead of nearly more 3 years passing. But, because so much time had already passed, this made little difference.[79]The sixth and last matter, f, relates to steps taken to obtain legal or medical advice. I do not think that anything arises here.[80]Those are the matters to which the section requires me in particular to have regard. I have to look at all the circumstances. I have held that the claimant’s learning difficulties are not such that he lacked capacity for the purpose of sections 28 and 38. It is submitted that his difficulties have been increased by the sexual abuse which he alleges he suffered, including abuse for which he alleges that the Church is responsible. His ability to bring proceedings earlier would have been greater if it were not for his mental difficulties. However, if he had been of higher intelligence, it is still likely that any action would have been brought long after the events, it might or might not have been brought within the lifetime of Father McTernan.[81]I was also referred to changes in the law effected by the House of Lords in Lister v Hesley Hall Limited [2002] 1 AC 215 as to vicarious liability in sex abuse cases, and in A v Hoare [2008] 1 AC 844 as to limitation in sex abuse cases. So, it is submitted, if the claimant had taken advice much earlier than he did, he might well then have been advised that he should not sue. That carries weight with regard to his claim based on vicarious liability, and he did not know an important fact relating to his claim in negligence until 2003. Of course A v Hoare came after the commencement of the action.[82]I was also asked to bear in mind that this claim is by a mentally disadvantaged claimant for abuse by a priest to whom he should have been able to accord particular trust. I consider that this is a factor which carries some weight.[83]I have analysed as best I may the difficulties which face the Church in the trial of this action in 2009. I consider that, such as they are, they are outweighed by the factors which favour a direction under section 33. It is equitable in the circumstances to favour the claimant’s ability to pursue his claims rather than to favour the Church’s limitation defence. If I had been against the claimant on capacity, I would have made a direction in respect of the claimant’s cause of action based on vicarious liability, and, if I had held that section 11 barred the cause of action based on the Church’s negligence, I would have made a direction in respect of that also.[84]The outcome as to limitation is that I hold that the claims are not barred. C. Liability (i). Was there abuse?[85]I have already referred to the difficulty in assessing the claimant’s evidence and that he is ‘a poor historian’. He has a tendency to exaggerate and maybe to fabricate. However some of the things that he has said which are surprising have turned out to be true at least in their essence. Thus he did when aged about 10 or 11 get into the cockpit of a parked airliner on a local airfield, and he did get into the driving seat of a bus at a bus station and may possibly even have driven it. Dr Shapero and Professor Murphy each gave evidence as to the assessment of the claimant as a truthful witness based on their interviews with him and on their considerable experience of interviewing sexually abused persons including those with learning difficulties. I found their evidence helpful.[86]I am satisfied that the essence of the claimant’s evidence concerning his association with Father Clonan is true.[87]Father Clonan was ordained in 1972 when he was 30. He came to the Church of Christ the King in that year. He was comparatively young. He was energetic. He was keen on the social side of parish work and worked with young people. No doubt, to repeat a phrase which has been used, he seemed a breath of fresh air. His father was in the building business and he knew about that. He had his own construction company which was involved in work for the Church. He started a disco for young people. He ran a football team. He was also an abuser of boys. A witness statement made by Simon Grey on 18 April 2002 was put in evidence on behalf of the claimant. He said:
“Father Clonan was an extrovert and quite modern for a Priest, especially in the 1970s. He drank regularly at the social club affiliated to the Church and operated a construction business. He was also very active in various social and community activities arranged by the Church. Father McTernan was quietly spoken and much older, whereas Father Clonan was seen as the young and fun one by most of the community. I am not sure what the source of his income was, but he always seemed to be wealthy. He drove a sports car and never had any qualms about paying myself and other boys generously for odd jobs that we did around the Church. For example, I can remember that I used to be paid £5 or sometimes £10 for cleaning his car or brushing the snooker table. My family was not particularly wealthy and this was a lot of money to me when I was aged 10 in 1975. At that time the pocket money that I received from my parents was just £1 per week. The overall effect of this was that Father Clonan was seen as one of the “guys” by my father and his friends as well as being a Priest. H was accordingly, very popular and well respected, both as a person and because he was a priest.”
Simon Grey went on to describe sexual abuse including buggery. It lasted for 8 years.[88]I am satisfied that the clamant became known to Father Clonan probably because he was admiring Father Clonan’s car – the claimant seems to have been interested in cars, and Father Clonan invited him to attend the church disco. The disco was for people of around the claimant’s age and finished quite early. Father Clonan asked him to help clear up afterwards on occasion. Both Catholics and non-Catholics went. An acquaintance developed and Father Clonan paid the claimant for doing jobs such as cleaning Father Clonan’s car or doing small jobs in the Presbytery. The claimant referred to sums of £10 or £15 pounds, which seemed likely to be a substantial exaggeration until I read Simon Grey’s evidence. The claimant also referred to going with Father Clonan to a house or houses in Birmingham which Father Clonan owned. He said that Father Clonan’s mother and sister were coming from Australia and he needed it cleaned. That seemed surprising, particularly in view of some of the detail that the claimant added. However the newspaper article of 14 January 1994 refers to a house in Coundon and says that there was also a neighbouring one owned by members of Father Clonan’s family. I am satisfied therefore that there was an association between Father Clonan and the claimant in which they saw each other on many occasions for the apparent purpose of the claimant doing jobs for Father Clonan. The claimant particularly liked working with Father Clonan’s car or cars, and this and the money gave Father Clonan a hold over him. Father Clonan did not involve the claimant in the activities of the church itself, such as attending services, and did not seek to engage with him on any religious level. The claimant’s parents were not Catholics and had no connection with the Church. They knew who Father Clonan was. The claimant’s father drank on occasion in the same public house as Father Clonan.[89]I am satisfied also that Father Clonan’s real purpose in the association was the sexual abuse of the claimant, and that sexual abuse occurred. Father Clonan was an abuser of boys. He did not stop short of it in the case of the claimant, but had cultivated the claimant for that purpose. The claimant’s evidence as to the specifics of the abuse was unsatisfactory. There were however two passages which in particular struck me as having the ring of truth. One was the claimant’s evidence that Father Clonan said when he first saw the claimant with his trousers down:
‘Oh, you’re smooth. Come here and I will get you as big as mine.’
Those will not be the exact words, but I think the reference to the claimant being smooth, that is, lacking in pubic hair, is an accurate reflection of what Father Clonan said. In his oral evidence the claimant described giving Father Clonan oral sex for the first time. He said that following it:
‘Then his voice went harder, and he told me to pull up my trousers, and not to tell anyone, particularly my mum, or there would be no more car cleaning, and anyway my mum wouldn’t believe me.’
I find the reference to Father Clonan’s voice growing harder particularly convincing, even though the claimant was describing what had happened over 30 years before. I do not think he could make that up.[90]I am satisfied that on frequent occasions Father Clonan touched the claimant’s genitals and bottom both over, and without, his clothes. He made the claimant masturbate in front of him, and on one occasion he masturbated the claimant in a lay-by. On a number of occasions he made the claimant give him oral sex. There was an occasion when the claimant was made to sit on Father Clonan and Father Clonan rocked him up and down, and the claimant had afterwards to clean his wet bottom in the lavatory. The grip that Father Clonan exerted on the claimant while this was happening caused finger marks. His mother saw these when he was in the bath. She did not believe him when he told her that Father Clonan had been feeling him up. There may have some degree of penetration, there may not. This is the only incident of its kind recounted in the claimant’s witness statement. I do not discount the possibility that the claimant was actually buggered by Father Clonan, but I do not find that it is more probable than not.[91]It is particularly difficult to say when and for how long the abuse of the claimant by Father Clonan occurred. All I can find is that the probability is that it occurred in 1975 or 1976, perhaps running from one year to another. As I have remarked it occurred, or at least started, before the claimant grew pubic hair, and it happened while his father was still alive. While the letter first making the claim referred to ‘many months’. It is likely to have been less than a year and more than 6 months.[92]I find that the claimant was subjected to further sexual abuse at the Pitt House Schools. The probability is that this did include buggery on many occasions. (ii). The claim based on vicarious liability.[93]The law relating to vicarious liability in cases of sexual abuse is of recent development. The claimants in Lister v Hesley Hall Ltd [2002 1 AC 215 were pupils at a boarding house owned and managed by the defendants. They were sexually abused by the warden. It was held by the House of Lords, over-ruling the Court of Appeal and restoring the decision of the trial judge, that the defendants were vicariously liable for the actions of the warden. The ratio of Lister as applied in a number of following cases was set out by Sir Anthony Clarke MR giving the judgment of the Court of Appeal in Gravil v Caroll [2008] EWCA Civ 689 in the following passage:
“12. Like the judge and the trial judge, we were referred to the relevant cases, especially to Lister v Hesley Hall Limited [2001] UKHL 22, [2002] 1 AC 215, Dubai Aluminium Co Limited v Salaam [2002] UKHL 48, [2003] 2 AC 366, Mattis v Pollock (trading as Flamingos Nightclub) [2003] EWCA Civ 887, [2003] 1WLR 2158, and Bernard v Attorney General of Jamaica [2004] UKPC 47. At [18] of his judgment the judge noted that in Lister Lord Steyn, with whom Lord Hutton and Lord Hobhouse agreed, suggested that two Canadian cases would in future be the starting point, namely Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71. The judge said that the question now is whether the employee’s tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. The judge further noted that earlier in his speech, at [10] Lord Steyn said that the judgments in those two Canadian cases examined in detail the circumstances in which, though an employer is not “at fault”, it might still be “fair” that it should bear responsibility for the tortious conduct of its employees. 13. In our opinion the judge correctly stated the question as being whether the tort was so closely connected with the employment that it would be fair and just to hold the employers vicariously liable. Lord Steyn emphasised at [17] the importance of an intense focus on the connection between the nature of the employment and the tort. At [24] he suggested that the court should concentrate on the connection between the nature of the employment and the particular tort. In Lister the focus was upon alleged sexual abuse by a warden of a school boarding house. At [28] Lord Steyn said that the question was whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold his employers vicariously liable. 14. Lord Clyde approached the matter in much the same way at [37], after referring to a passage in the first edition of Salmond, Law of Torts in 1907 (before the decision in Lloyd v Grace, Smith & Co [1912] AC 716), which stated that a master would be responsible for the wrongful act of his servant if the act done is a wrongful and unauthorised mode of doing an act authorised by the master: “37. That latter observation seems to me to be of particular importance. An act of deliberate wrongdoing may not sit easily as a wrongful mode of doing an authorised act. But recognition should be given to the critical element in the observation, namely the necessary connection between the act and the employment. The point is made by Salmond even in the first edition, at p 84, where he states: “on the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible.”
What has essentially to be considered is the connection, if any between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be gauged by asking whether the wrongful actings can be seen as ways of carrying out the work which the employer has authorised. ” 15. Lord Clyde further suggested at [43] that a question for consideration is whether the act complained of is incidental to and thus within the scope of the relevant employment. See also his contrast at [44] with acts of passion and resentment (as in Deatons Pty Ltd v Flew (1949) 79 CLR 370) or personal spite (as in Irving v Post Office [1987] IRLR 289) or an independent act not sufficiently connected with the employment (as in Aldred v Nacanco [1987] IRLR 292), although in the case of independent acts compare Dubai Aluminium per Lord Millett at [123] and Mattis v Pollock per Judge LJ, giving the judgment of this court, at [19]. 16. Lord Hobhouse perhaps approached the problem somewhat differently. He said at [59] that whether or not an act comes within the scope of the employment depends upon what the employee is employed to do. If the act amounts to a failure to perform his duty, the act comes within the scope of his employment. On the other hand, if the employment merely gives the employee the opportunity to do what he did, without more, it will not. The relevant connection with the employment must be something which is not a casual coincidence but has the requisite relationship to the employment. See also at [60]. Lord Millett too focused at [70] on the closeness of the connection between the employee’s duties and his wrongdoing. He did the same at [121] and [129] of Dubai Aluminium, albeit in the context of dishonest assistance. 17. In Dubai Aluminium the leading speech was given by Lord Nicholls, with whom Lord Slynn and Lord Hutton agreed. Lord Nicholls considered the principles in some detail at [21-33] and at [36] again stressed the importance of a close connection between the tort and the employment. 18. In Mattis v Pollock this court, which comprised Judge and Dyson LJJ and Pumfrey J, considered the principles in some detail in a case in which a doorman employed by the owner of a night club was held vicariously responsible where the doorman stabbed the claimant with a knife having left the club but returned (still in working hours) bent on revenge. The relevance of that case here is not the striking nature of the facts, which are very different from these, but the statement at [19] that the principle to be derived from Lister and Dubai Aluminium requires a “deceptively simple question” to be answered. That question is that to which we referred earlier, namely 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 responsible. 19. These principles were affirmed by the Privy Council in Bernard v Attorney General of Jamaica, where the judgment of the Judicial Committee was given by Lord Steyn. At [18] he summarised the relevant principles:
“18. In Lister a warden of a school boarding house had sexually abused resident children. The question was whether the employers were vicariously liable. In the leading opinion a single ultimate was question posed, namely [at 230C]: “…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.”
The four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was “yes” because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. This decision did not come out of the blue. On the contrary, it was a development based on a line of decisions of high authority dating from Lloyd v Grace, Smith & Co [1912] AC 716 where vicarious liability was found established in cases of intentional wrongs. Lister is, however, important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor’s employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond’s well known formula, the question whether the act is “a wrongful and unauthorised mode of doing some act authorised by the master” is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st ed., 1996, 443. This test may invite a negative answer, with terminological quibble, even where there is a very close connection between the tort and the functions of the employee making it fair and just to impose vicarious liability. The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable….” 20. Lord Steyn then referred in [19] to Dubai Aluminium and the leading opinion of Lord Nicholls, from which he cited this passage from [23]:
“…Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.”

Lord Steyn added:

“Throughout the judgments there is an emphasis on the proposition that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carried on.” 21. As we see it, the authorities show that the essential question is that posed in Lister and adopted in Mattis, namely whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible. In answering that question the court must take account of all the circumstances of the case, as Lord Steyn put it, looking at the matter in the round. The authorities show that it will ordinarily be fair and just to hold the employer liable where the wrongful conduct may fairly and properly be regarded as done while acting in the ordinary course of the employee’s employment (per Lord Nicholls). This is because an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business being carried on (per Lord Steyn).” “37. That latter observation seems to me to be of particular importance. An act of deliberate wrongdoing may not sit easily as a wrongful mode of doing an authorised act. But recognition should be given to the critical element in the observation, namely the necessary connection between the act and the employment. The point is made by Salmond even in the first edition, at p 84, where he states: “on the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible.”
What has essentially to be considered is the connection, if any between the act in question and the employment. If there is a connection, then the closeness of that connection has to be considered. The sufficiency of the connection may be gauged by asking whether the wrongful actings can be seen as ways of carrying out the work which the employer has authorised. ” “18. In Lister a warden of a school boarding house had sexually abused resident children. The question was whether the employers were vicariously liable. In the leading opinion a single ultimate was question posed, namely [at 230C]:
“…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.”
The four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was “yes” because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. This decision did not come out of the blue. On the contrary, it was a development based on a line of decisions of high authority dating from Lloyd v Grace, Smith & Co [1912] AC 716 where vicarious liability was found established in cases of intentional wrongs. Lister is, however, important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor’s employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond’s well known formula, the question whether the act is “a wrongful and unauthorised mode of doing some act authorised by the master” is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st ed., 1996, 443. This test may invite a negative answer, with terminological quibble, even where there is a very close connection between the tort and the functions of the employee making it fair and just to impose vicarious liability. The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable….” “…Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.”[94]Dubai Aluminium concerned the liability of the partners of a solicitor who had played a part in a fraud. They were vicariously liable. Mattis concerned the liability of a club owner for the stabbing in the street by a bouncer of someone who had been at the club: the bouncer had gone back to his flat to get the knife: the club owner was held vicariously liable as the employer of the bouncer whom he had encouraged to be violent. Bernard was concerned with the shooting by a constable of a man who refused to hand over the use of a public telephone to the constable: the Attorney General was held vicariously liable. In Gravil itself a rugby club was held liable in respect of its employee, a player, for a punch thrown in an off-the-ball incident.[95]The judgments in the two decisions of the Supreme Court of Canada cited in Lister and in Gravil were delivered by the same court on the same day. In Bazley the defendant was a non-profit organisation which operated two residential care facilities where it acted as a substitute parent, and it authorised its employees to act as parent figures. With no negligence on its part the defendant employed a paedophile to work in one of the homes. He groomed a child and then abused him. The court held unanimously that the defendant was liable. In Jacobi the relevant defendant was a children’s club which operated a recreational facility for children. Two children who frequented the club were sexually assaulted by an employee. His job was to supervise the volunteer staff and to organize after-school recreational facilities and the occasional outing. He was encouraged to develop an emotional rapport with the children. He developed a friendship with two children, a brother and sister aged 11 and 13 respectively. All the assaults, except one incident of sexual touching in the club’s van during an outing took place at the employee’s home and outside working hours. The Supreme Court held by a majority of 4 to 3 that the defendant was not liable. The reasoning of the majority is set out in the headnote as follows:
“The “strong connection” test is not satisfied in this case. The employee took advantage of the opportunity the club afforded him to make friends with the children. But the fact that the employment provided the opportunity to commit the sexual assaults is not sufficient to render the employer liable. The power the employee used to accomplish his criminal purpose through manipulation of the friendships he had developed with the children was neither conferred by the club nor was it characteristic of the type of enterprise which the club put into the community. The club’s enterprise was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The sexual assaults only became possible when the employee managed to subvert the public nature of the activities by isolating the victims from the group. While it was part of the employee’s job to develop a positive rapport with children, the relationship was not one of intimacy. An enterprise that seeks to provide a positive role model does not thereby encourage intimacy. Where, as here, the chain of events leading to the sexual assaults constitutes independent initiatives on the part of the employee for his personal gratification, the ultimate misconduct is too remote from the employer’s enterprise to justify no-fault liability. The one act of sexual touching that took place in the club’s van, given that it was a minor and incidental part of the employee’s ongoing campaign of sexual predation outside club facilities and outside club hours, was not sufficient to trigger no-fault liability.”
[96]The reasoning of the minority is set out as follows:
“Vicarious liability should attach to the club for the intentional sexual torts of its employee. As the case law on the issue is inconclusive and unsatisfactory, the focus must be on considerations of principle and policy. Vicarious liability is justified as the club’s operation of its business and use of the employee in his employment position created and materially enhanced the risk of the sexual assaults that took place. The club was not a “garden-variety” sports league. It took as its function the goal of guidance and moral direction to youths, many of whom had disadvantaged or even troubled backgrounds. The club authorized a mentoring relationship of trust and intimacy between its employees and the children. The fact that, except for one incident, all of the assaults took place off site (at the employee’s home) and after hours weighs against holding the club liable, but in the end is not conclusive. The issue of whether a sufficient connection to posit vicarious liability exists between the wrongful act and the employment involves much more than when and where the wrongful act occurred. To treat the torts simply as discrete incidents that occurred at the employee’s home is to ignore the careful plan of entrapment that the employee laid. It was his fostering of trust at the club, flowing from the requirement of his employment that he forge bonds of intimacy and respect, that enabled him to commit his despicable acts. The club introduced the employee to the community’s children and clothed him with special responsibilities and powers over those children who were most vulnerable. It created and sustained the risk that materialized. Compensation for the harm that followed may fairly be viewed as a cost of the club’s operations. The rationales of risk distribution and deterrence support vicarious liability in these circumstances.”
I set these out as examples of how the ‘close connection’ principle may be applied, which are illustrative in the present context.[97]In Lister Lord Steyn stated in paragraph 27:
“27. My Lords, I have been greatly assisted by the luminous and illuminating judgments of the Canadian Supreme Court in Bazley v Carr 174 DLR (4th)45 and Jocobi v Griffiths 174 DLR (4th) 71. Wherever such problems are considered in future in the common law world these judgments will be the starting point. On the other hand, it is unnecessary to express views on the full range of policy considerations examined in those decisions.”
[98]It was accepted by Mr Faulks on behalf of the Church that there could be circumstances in which the Church would be vicariously liable for sexual assaults committed by one of its priests. He submitted that here the assaults of Father Clonan on the claimant were not so closely connected with his ‘employment’ to render the Church liable.[99]Miss Gumbel submitted that there was such a connection. She referred to the duty of a priest to evangelise as recently set out in a ‘Doctrinal Note on some Aspects of Evangelisation’ dated 14 December 2007 and approved by the Pope. Monsignor Moran agreed that it was Father Clonan’s duty to befriend non-Roman Catholics, to gain their trust, to establish a relationship, and to spend time alone with them. I am sure that the Monsignor would have added ‘in appropriate contexts’. He agreed that Father Clonan’s duty was to engage with such people on matters of interest to them, and that it was necessary to do that before coming to theology. Monsignor Moran had read of the disco and that it was not only for Catholics. He said that a possible reason was contact with young persons who were not Catholics, who could be interested in becoming Catholics and would speak to a priest about it: it was Father Clonan’s duty to help them to that end. Miss Gumbel referred to the fact that the claimant went into the Presbytery and an occasion on which he was asked to wash prayer mats. His jobs in the Presbytery included hovering, ironing and cleaning. Although it is difficult to form an impression of the division of the claimant’s tasks, car washing must come high on the list, and there was also cleaning at the other houses. The car or cars and the money constituted the attraction for the claimant.[100]Questions as to the vicarious liability of a church in respect of acts of sexual abuse of children by one of its priests may be both particularly difficult and sensitive. That arises from the wide duties of priests and the respect which the priesthood may be accorded. It is clear that what I may call ‘youth work’ was a major part of Father Clonan’s contribution to the parish. He did it in his capacity as a priest. It is submitted that his association with the claimant was carried out under that guise, that there was no other justification for it, and that the association was accepted by the claimant’s parents because Father Clonan was a priest. I accept that it was Father Clonan’s position as a priest which gave him the opportunity to abuse the claimant. But, as Jacobi shows, that is not by itself sufficient. I refer also to the speech of Lord Hobhouse in Lister. Father Clonan’s association with the claimant was founded on his use of the claimant for money to wash his car, to do cleaning in the Presbytery and in other houses, and to iron his clothes. That employment was not a priestly activity. Father Clonan did not do anything to draw the claimant into the activities of the Church. The association was not part of evangelisation, before “even” in its most extended sense. I therefore conclude that the assaults which Father Clonan carried out on the claimant were not so closely connected with Father Clonan’s employment or quasi-employment by the Church that it would be fair and just to hold the Church liable. (iii). The claim based in negligence[101]The basis of this claim is that following the complaint of M’s parents in 1974 Father McTernan took no effective action, that this was negligent, that this is to be treated as the negligence of the Church, and that in the result Father Clonan was able to continue and later to assault the claimant. It was accepted by Mr Faulks on behalf of the Church that any negligence of Father McTernan was to be treated as that of the Church. He submitted that there was no duty in law owed by Father McTernan or the Church to the claimant, a future victim with no connection to the Church.[102]In support of his submission that the Church owed no duty Mr Faulks relied on Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. The claim was brought against the police by the father of one of the victims of the Yorkshire Ripper for negligence in failing to apprehend him, and so prevent her murder. The headnote states:
‘Although police officers could be liable in tort to persons injured as a direct result of their acts or omissions, there was no general duty of care owed by them to identify or apprehend an unknown criminal, nor did they owe a duty of care to individual members of the public who might suffer injury through the criminal’s activities save where their failure to apprehend him had created an exceptional added risk, different in incidence from the general risk to the public at large from criminal activities, so as to establish sufficient proximity of relationship between the police officers and the victims of the crime; that although it could have been reasonably foreseen that S., if not apprehended, would be likely to harm young female members of the public, the fact that the plaintiff’s daughter had been young and female did not place her at special risk, and there being no other additional characteristics capable of establishing a duty of care owed to her by the defendant in relation to the apprehension of S. the judge had been right to strike out the statement of claim as disclosing no cause of action.’
[103]The facts in Hill were different to those here, because here Father Clonan was identified and he had a comparatively small circle of young associates. Further, Hill involved the duty of a public authority, the police. The claimant was probably not one of Father Clonan’s associates in 1974 but had become one a year or two later. I think that the situation can be tested in this way. Suppose that the managers of a care home appoint a person to work there without making any adequate checks on him, and he is in fact a paedophile, which should have been discovered: could the managers say that they owed no duty to boys who were then in the home, or later came to it, and were abused by the employee? Plainly not. A close analogy can be drawn between the occupants of the home and boys within Father Clonan’s congregation at the time of X’s complaint and later. But the claimant was not within that congregation, and I have held that the circumstances of his association with the claimant were such that the Church is not vicariously liable for his assaults on the claimant.[104]I should take the test as to whether a duty of care arises from the frequently cited passage from Lord Bridge’s opinion in Caparo v Dickman [1990] 2 AC 605 at 617:
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by law as one of ‘proximity’ or ‘neighbourhood’ and the situation should be one in which the court considers 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.”
That may be compared with the test I have sought to apply in relation to vicarious liability, ‘whether the tort was so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.’ It seems to me that in the particular context here these two tests should provide the same answer. It is not arguable in this sort of situation that a defendant employer owes a duty to the world at large. The question is where the line should be drawn. If the assaults were carried out in circumstances in which there is no vicarious liability because they were not sufficiently closely connected with the employment, then the victim should be outside any duty of care owed by the employer. That may be put in terms of a lack of proximity, or in terms of what is fair just and reasonable, or the two combined. The Church could not be liable in negligence to a victim whom Father Clonan had found one day in an amusement arcade. The claimant falls the same side of the line as such a person, but, of course, much closer to the line.[105]In view of that conclusion, the issue of whether Father McTernan was negligent and so the Church was negligent, does not arise. I will, however, make my findings upon it in case that conclusion is held to be wrong on appeal.[106]I accept that a complaint was made to Father McTernan as I have already set out - in particular under the heading of section 33 of the Limitation Act: see paragraph 72. I do not find it credible that the parents should have invented the story of their complaint. Later events have shown that the complaint was justified. In reaching my conclusion that the complaint was made, I take full account that in 1992 Father McTernan had no recollection of it, or of having gone to the parents’ house. Father McTernan should have appreciated that this was a very serious matter, which required to be reported both to the police so an independent investigation could be carried out, and to his superiors. He spoke to Father Clonan, who must have denied that anything had occurred. That was an inadequate response. If Father McTernan had been observant as he should have been, he would have been aware of Father Clonan’s associations with boys like M and the car washing and so on. The complaint was not one which could be brushed under the carpet. I accept that sexual abuse was not understood then as it is now. In A v Hoare Lady Hale started at the start of her opinion:
“Until the 1970s people were reluctant to believe that child sexual abuse took place at all. Now we know only to well that it does. But it remains hard to protect children from it.”
That is particularly true of knowledge of abuse of very young children. With older children it has been long well known, though its gravity may not have been appreciated. Choirmasters misbehaving with choirboys has been a trite situation for many decades. Father McTernan found himself in an uncomfortable position, but even by the standards of 1974 he should have reported the matter.[107]I therefore find that the Church is not liable for the assaults committed on this claimant by Father Clonan.

D. Damages

[108]I will set out my conclusions in case my conclusion on liability is held on appeal to be wrong.

(i) General damages

[109]The general damages should compensate the claimant for the acts themselves and also for their effect on him. I have set out my findings as to the acts in paragraph 90 and 91. Dr Shapiro and Professor Murphy were agreed that the claimant showed symptoms of psychological disturbance. Dr Shapiro considered that he was suffering from enduring personality change consequent upon a traumatic experience. The joint statement speaks of maladaptive personality traits. I have also to take account of the fact that, as I have mentioned, in a letter dated 27 November 1975 a child psychiatrist stated ‘There seems little doubt that this boy in addition to being educationally subnormal is very disturbed.’ This may have been before any abuse. It may have overlapped with it. There is the further complication of the abuse at the Pitt House Schools, which came second but was more severe. Having considered the expert evidence I hold that the abuse which the claimant sustained from Father Clonan and while at the Pitt House Schools has exacerbated his problems. It is a common experience that sexual abuse does cause ongoing problems for its victims, often of a very serious nature. It is not to be expected that the abuse would be without effect. I have to take a broad brush approach to division of responsibility between Father Clonan and the Pitt House Schools. I consider that it will reflect the fact that the abuse by Father Clonan came first and was therefore more damaging, and the fact that the abuse at the Pitt House Schools was more serious, if I take them as equally responsible. I should say that I am not satisfied that the claimant suffers from flash backs. I accept Professor Murphy’s evidence that what the claimant describes is atypical. The claimant’s therapist also recorded her disbelief.[110]I have been provided by Miss Gumbel with a helpful analysis of the awards made by the Court of Appeal in Bryn Alyn [2003] EWCA Civ 85. I have also considered the award made by Christopher Clarke J in A v Archbishop of Birmingham [2005] EWHC 1361 (QB), among other cases. A’s case involved Father Clonan and was a far more serious case than the present. A’s family were devout Catholics. The abuse had lasted from 1977 to 1988. General damages were agreed at £50,000.[111]In the present case I consider that the general damages should be £17,500. That might be divided as to £10,000 for the actual abuse and £7,500 for the psychological damage for which Father Clonan was responsible. (ii). Loss of earnings[112]The claimant’s case is that if he had not been abused and suffered the psychological damage that caused, he could have held down a very simple job though there would have been periods of unemployment. He has never worked and it is not suggested that he is employable. In my view the likelihood is that even without the effect of the abuse the claimant would have found employment problematic. I think that Dr Shapiro took too optimistic a view. In the joint statement the experts said; “If abuse occurred, it would have tended to impair his capacity to relate to others (for example by causing a fear of authority, or to have an anti-authoritarian attitude), which may have further affected his in any case severely limited employability.”[113]I do not think that this is a case where a calculation can be done involving multipliers: it is a case to be dealt with on a broad brush approach with a lump sum award to cover past as well as future loss. £30,000 is appropriate. That has to be divided by two to reflect the division of responsibility between the Church and the Pitt House Schools. (iii). The cost of further therapy[114]The claimant has had considerable therapy, and in my view it has been extended it because he enjoys both the company and the attention which it brings. I do not consider that a need for further therapy in the future is established. (iv). Court of Protection costs[115]I have already expressed the view that the claimant does not have the capacity to handle a substantial sum of money. It was agreed that I need not make any more detailed finding under this head.

Cited in 3 later judgments