NZ Human Rights Tribunal case to test vicarious liability of church for clergy abuse

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The Diocese of Nelson — a traditional evangelical diocese in the Province of Aotearoa, New Zealand and Polynesia — is facing a legal challenge from a former parishioner, claiming the diocese and its bishop, the Rt. Rev. Richard Ellena, are liable for misconduct by one of its parish clergy.

The New Zealand Herald reports that a claim has been filed in the country’s Human Rights Tribunal by a female parishioner, arguing that the priest who allegedly abused her was an agent of the diocese and bishop — and that the church should be held vicariously liable for his bad acts.

The suit is the first attempt under the provisions of New Zealand’s Human Rights laws governing sexual harassment to hold an institution liable for clergy abuse. New Zealand’s common law courts have hitherto held that clergy are not employees of the church who provide a service.

Under American law, a church may be held vicariously liable for the misconduct of its clergy, if it did not take reasonable steps to prevent the misconduct. US courts have held the church owes a duty to prevent foreseeable harm, including intentional acts. The Restatement of Torts (Second) §317 indicates that under certain circumstances an employer has a duty to exercise reasonable care to control an employee even though the employee may be acting outside the scope of the employment.  The case at bar seeks to use the framework of Human Rights legislation to open the door to church liability which had hitherto been closed under most common law jurisdictions.

The Herald reported that an unnamed female parishioner had sought counseling following a miscarriage* from the assistant vicar of Nativity Anglican Church, the Rev. Michael van Wijk in Blenheim on New Zealand’s South Island approximately ten years ago.

She alleges van Wijk caused her to suffer “humiliation, a loss of dignity and injury to her feelings.” She is seeking an apology from the diocese and damages of NZ$100,000

Van Wijk has denied the allegations of misconduct, saying the relationship had been consensual. The former bishop of Nelson, the Rt. Rev. Derek Eaton, and the current Bishop of Nelson, the Rt. Rev. Richard Ellena, denied being aware of the affair when it was taking place. When Bishop Ellena learned of van Wijk’s actions, he suspended the priest and asked for his resignation. When van Wijk allegedly sought to continue the relationship, Bishop Ellena defrocked him in 2016.

In a statement to the Herald, the Diocese of Nelson said that since the events it had revisited its protocols to ensure safety. It was always open to learning from experience, it said.

“The Diocese reiterates its deep regret for the actions of one called to be an ordained minister of the Church, which amounted to a significant breach of trust against the complainant.”

*N.b. The plaintiff writes she suffered a stillbirth, not a miscarriage. The Center for Disease Control defines a miscarriage as the death of a fetus up to 20 weeks of gestation. A stillbirth is the death of a fetus after 20 weeks of gestation.