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Vicarious liability

During the past years we have had some confused ideas on whether the Catholic Church in Malta is vicariously liable for any child sex abuse.

To prove their point, some have also referred to the employer-worker clause under Maltese law to submit that the employer is always responsible for his worker’s negligence. They, therefore, argue, that the Church is always responsible for the negligence of its priests.

Article 1037 of the Civil Code states: “Where a person for any work or service whatsoever employs another person who is incompetent, or whom he has not reasonable grounds to consider competent, he shall be liable for any damage which such other person may, through incompetence in the performance of such work or service, cause to others.”

So, the ingredients of this section are: a) knowledge by the employer of incompetence of the employee for a specific work; and b) the incompetence must be previous to the employment.

In the light of this provision of the law, the Catholic Church prepares candidates for the priesthood according to Canon Law and its relevant documents. So every priest is presumed to be capable of carrying out his duties well according to Church rules. This preparation, of course, always precedes any pastoral work carried out by the priest. Besides, the Church always assigns duties to its priests according to their personal capabilities.

Therefore, the two ingredients required by article 1037 of the Civil Code are present in any pastoral work assigned to priests by the Church.

This can lead us to only one conclusion: the Catholic Church is not vicariously liable to any negligence committed by any of its priests.

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