AMONG the many trials and humiliations likely to be suffered by the Catholic Church at the forthcoming royal commission into the sexual abuse of children will be the suggestion that it has sought to hide any liability it might have behind a vast network of trusts, companies and entities which have made almost impossible finding the right body to sue.
Strictly, there is no such legal entity as the Catholic Church, able to be sued in much the same fashion that one can sue Fairfax, the publishers of this newspaper, or General Motors, the makers of Commodores, the Canberra Centre, which owns shopping malls, or McDonald's, which purveys hamburgers. Companies, or legal entities such as these are readily sued not only for things they are directly said to have done (for example, published a defamation or made a bad hamburger) but also, vicariously, for the acts and omissions of their employees, if they involved negligence to those to whom a duty of care was owed, or if an accident happens on their premises.
The Catholic Church has many faces. Bodies associated with it operate hospitals, health centres, aged-care centres and hospices, kindergartens, childcare centres, schools and universities, hostels, boarding care, day care, respite care and half-way house accommodation, counselling and social work services, sports, social and cultural centres, churches and church social centres. Some are organised at parish level, others at diocesan level, others by religious orders not directly responsible to bishops, and others still, essentially in the hands of lay people, have only informal relations with the church authorities, and, strictly, manage their own affairs.
Some important faces of the church, such as the St Vincent de Paul Society, are primarily the work of volunteers. Other services are provided by paid employees, including doctors, nurses, social workers, teachers and counsellors. Still others are provided by priests - some of whom are ''secular'' - which is to say responsible to their local bishop - and some of whom are religious - which is to say members of religious orders, and subject to the discipline of those bodies. There are also bodies of nuns and brothers, also in religious institutes or orders.
Further to confuse things, some religious orders own and operate their own schools - Marist Brothers Pearce, for example - and some work in schools which are owned and operated by their diocese and controlled by the diocesan Catholic Education Offices.
The management and governance arrangements for much of this is not generally published. Working out whom to sue or hold liable for any breach of duty can be long and arduous, particularly when some of the church's representatives have been less than helpful in nominating the appropriate body to sue. The Catholic Church has also acquired some reputation of seeking to evade liability on the part of some of its servants by denying liability for misconduct by members. It has been claimed, for example, that a bishop is not responsible for criminal conduct by priests because neither is in a master-servant relationship, and, in any event, sexual abuse is not incidental to ministry.
A priest, even when paid a stipend, is not strictly an employee and is certainly not authorised to sexually molest children, the argument goes. If he should do so, he may deserve anything he gets, by way of punishment or damages from such resources as he has, but it would be unfair, it is said, that his bishop should have to pay for his misconduct.
Likewise, the legal status at common law of many religious organisations is more or less as an unincorporated association of volunteers. These have banded together, in some cases all around the world, under a particular set of rules and government, so as to do good things (for example to teach) for the glory of God. Members of such orders pledge themselves to chastity, poverty and obedience, surrender all their property to their order, and agree to ''go wherever I may be sent and to do whatever I might be assigned'' by their relevant superior. Associated entities may own property, such as schools or dwellings. To what extent are the brothers collectively - perhaps all over the world - responsible for the misdeeds of a few, when most have been in no position whatever to prevent misbehaviour?
Several weeks ago, a judgment by the British Supreme Court set out to establish the principles which should govern such cases.
Its judgment is not binding in Australia, but would be likely to be highly influential here. All the more so because, as the British Supreme Court tartly commented, Australian law on the subject has been all over the shop, with even the High Court ''showing a bewildering variety of analysis''. By bewildering, it also meant unconvincing. By comparison, Britain and Canada are on the same track, miles ahead.
It has long been settled in Britain that an unincorporated body can be vicariously liable for the tortious acts of one or more of its members, even where the tortious act involved a clear breach of duty or a criminal offence. It was also possible for two or more defendants to be vicariously liable for the act of another at the same time.
The principle of vicarious liability (responsibility for acts done by someone else, such as an employee) involves public policy as well as law. An employer is more likely to have the means to compensate a victim, and, if he knows he will be liable for what his agent does, he has some capacity to control what the agent does so as to avoid the risk. In some circumstances, he can insure. Those responsible for a school, for example, can organise matters to reduce to a minimum opportunities for children to be alone with potential abusers.
Even where the relationship is not one of employer and employee, vicarious liability could arise if the relationship was similar, it said, indicating a serious impatience with fine hairsplitting about the exact legal relationships between priests and bishops, or religious and their superiors.
Likewise the court was less focused on the fact that abuse would be plainly unlawful and forbidden than on the fact that religious organisations placed members in places where there was a clear risk that some might offend.
The court quoted a Canadian judgment saying that ''experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are placed in close proximity to them and occupying a position of trust''. In the case before it, the question involved the vicarious responsibility of a religious order providing brothers to a residential home maintained by a diocese. (The diocese had already been held vicariously liable, but thought the order should have to contribute to the damages too.)
''Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse,'' the court said. ''The essential closeness of connection between the relationship between the defendant (religious order) and the tortfeasor (abuser) and the acts of abuse thus involves a strong causative link.
''Living cloistered on the school premises were vulnerable boys. They were triply vulnerable. They were vulnerable because they were children in a school; they were vulnerable because they were virtually prisoners in the school; and they were vulnerable because their personal histories made it even less likely that if they attempted to disclose what was happening to them they would be believed.
''The brother teachers were placed in the school to care for the educational and religious needs of these pupils. Abusing the boys in their care was diametrically opposed to these objectives, but, paradoxically, that very fact was one of the factors that provided the necessary close connection between the abuse and the relationship between the brothers and the institute that gives rise to vicarious liability on the part of the other …
''This is not a borderline case,'' it said in conclusion. If its reasoning were to be followed in Australia, there would be little need for argument about who should take the rap for abuse, when it has been shown to occur. The focus would instead be on the facts, and the consequences, with technical points about ultimate responsibility and legal liability at a minimum. All of those with duties of stewardship would share the blame; if it was to be apportioned for a damages settlement, the focus would be more on the practical measures those stewards had taken to minimise the risk and to protect the vulnerable.
As the church now admits, all too often there was too little of that, and too late.