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FOR TORTS - Affecting the person - Sexual assault

Tuesday, September 08, 2020 @ 9:00 AM  


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Appeal by the plaintiffs from trial judgment dismissing their claims against the Archdiocese for vicarious liability and negligence. Cross-appeal by the Archdiocese from the provisional assessment of general damages and the provisional awards for economic loss, including pre-judgment interest. The appellants sued the Archdiocese and the Christian Brothers for damages for sexual abuse they suffered while living at Mount Cashel orphanage during the 1950s. The appellants alleged the Archdiocese was vicariously liable for the Brothers’ sexual abuse of them and for the negligence of Monsignor Ryan, who lived at the orphanage. The boys living at Mount Cashel told Monsignor Ryan that they had been sexually abused in confession. There were no allegations that Monsignor Ryan had ever sexually abused a boy. The appellants alleged Monsignor Ryan breached his fiduciary duty to them and that the Archdiocese was directly liable in negligence because it knew of the sexual abuse at the orphanage but failed to act on that knowledge. 

HELD: Appeal and cross-appeal allowed in part. The judge erred in deciding that the Archdiocese was not vicariously liable for the Brothers’ sexual abuse of the appellants by inappropriately characterizing the requirements to be met for vicarious liability, by failing to globally assess the evidence and by conflating the closeness and connection inquiries. His focus on the doctrine of vicarious liability as generally involving an employment relationship, his failure to identify the fundamental question to be answered, his focus on control of day-to-day operations at the orphanage, and his comparison of the Archdiocese’s conduct with the Brothers’ conduct characterized the doctrine in a limiting way. He also failed to consider relevant evidence in his analysis. The relationship between the Brothers and the Archdiocese showed the Brothers were working on the account of the Archdiocese’s social and religious mandate. Their relationship was sufficiently close, and the connection between the Brothers’ assigned tasks and their wrongdoing was sufficiently close, to justify the imposition of vicarious liability on the Archdiocese. While the judge erred in deciding Monsignor Ryan owed no duty of care to the appellants, the judge did not err in finding there was no breach of duty. His responsibilities went beyond formal religious instruction and extended to promoting the boys’ overall well-being. Monsignor Ryan’s role was not so minor that a proximate relationship with the appellants was precluded. A prima facie duty of care existed and had not been negated for policy reasons. The judge’s conclusion that the evidence did not establish that Monsignor Ryan failed to act on the information about the sexual abuse was, however, reasonably supported by the evidence. Monsignor Ryan was thus not negligent. The judge also made no error in concluding that there was no breach of fiduciary duty by Monsignor Ryan. The judge made no error in concluding the Archdiocese was not directly negligent. There was no evidence that the Archdiocese had direct knowledge of the Brothers’ abuse. In determining the provisional awards for general damages, the judge applied the correct but for tests and properly considered factors that contributed to the appellants’ losses. The awards of general and aggravated damages were in accordance with the ranges established in the jurisprudence and recognized the trend towards higher awards for childhood sexual abuse. The judge was aware of and considered the appellants’ potential family history with alcoholism and evidence of the expert witnesses. The judge properly assessed the provisional awards for economic loss but erred in the way he awarded pre-judgment interest on the provisional awards for loss of income. The judge did not apply the discoverability principle and made no finding as to when the appellants would have had substantial awareness of the harm done and its likely cause. Pre-judgment interest on the economic loss awards was to be calculated from the date the statements of claim were filed until the date of judgment.

John Doe (G.E.B. #25) v. Roman Catholic Episcopal Corp. of St. John's, [2020] N.J. No. 156, Newfoundland and Labrador Court of Appeal, D.E. Fry C.J.N.L., L.R. Hoegg and F.P. O'Brien J.A., July 28, 2020. Digest No. TLD-September72020002