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17/07/2023
In one of the first major decisions on vicarious liability since Barclays Bank[1] and Morrisons[2], the Supreme Court has provided clarity on the limits of the doctrine.
The facts
The Claimant was a Jehovah’s Witness who began attending the Defendant’s congregation in 1984, and became a close friend to Mark Sewell, who became an elder in the church. However, by 1989, she began noticing a change in his behaviour. He seemed depressed, began to abuse alcohol, and also began flirting with her.
She eventually became so concerned that she spoke to his father (another elder) about his behaviour. His father told her that he was suffering from depression and asked the Claimant to provide him with extra support. The Claimant provided this, but Mr. Sewell’s behaviour became more erratic still.
In April 1990, the Claimant and Mr. Sewell were evangelising. Later that afternoon, Mr. Sewell’s wife asked the Claimant to speak to him. The Claimant went to speak to Mr. Sewell to convince him to go to the elders about his depression, but during the conversation Mr. Sewell pushed the Claimant to the floor and raped her. Following this, the Claimant suffered episodes of depression and PTSD.
First Instance
Chamberlain J considered that the Defendant was vicariously liable for the rape.
He considered that the first stage of the inquiry was to focus on “whether the relationship between the Defendants and Mark Sewell, one of their elders, was capable of giving rise to vicarious liability”. He held that it was. Firstly, Mark Sewell carried on activities that were an integral part of the business. Secondly, the commission of the rape was a risk created by the Defendants by assigning those activities to him.
The second stage of the inquiry was also satisfied since, “the rape was … sufficiently closely connected to Mark Sewell’s … [position as elder] to make it just and reasonable that the Defendants be held vicariously liable for it”.[3] The reasons for that conclusion were that:
1. But for Mark Sewell’s standing in the church, he and the Claimant would not have remained friends at the time of the rape.
2. The Defendant increased the risk of rape by creating conditions in which the two would be alone together.
3. The circumstances in which the rape occurred were closely connected to the religious duties that the Claimant and Mr. Sewell were undertaking.
4. One of the reasons for the rape was to give Mr. Sewell scriptural grounds to divorce his wife.
The Defendant appealed.
Court of Appeal
The Court of Appeal dismissed the appeal. Nicola Davies LJ, giving the leading judgment, referred to the cases of Barclays Bank and Morrisons, but agreed that the law surrounding vicarious liability was derived from the cases prior to that, which were referred to by Chamberlain J.
It was held that the first stage of the test (the ‘relationship test’) was fulfilled. Emphasis was placed on the control that the Jehovah’s Witnesses exerted over the lives of its members, as well as its hierarchical structure. This made it a relationship that was sufficiently akin to that of employer and employee.
As to the second stage, Nicola Davies LJ held that on the facts, “what is relevant for the purpose of the close connection test is the conferral of authority by the Jehovah’s Witness organisation upon its elders, coupled with the opportunity for physical proximity as between an elder and publishers in the congregation”.[4] This was accepted as the basis for satisfying the test of close connection.
Giving a concurring judgment, Males LJ agreed with Nicola Davies LJ, but his reasoning on the second stage of the test differed. He recognised that the correct close connection test was the test confirmed in Morrison but there was a need for some modification because sexual abuse cannot be regarded as something done in the ordinary course of employment.
To Males LJ, the two essential issues in applying that test were: a) whether Mr. Sewell’s status as an elder placed him in a position of power or authority over the Claimant, and b) whether the rape was an abuse of that position as distinct from being unconnected with his status as an elder. On his analysis the second stage was satisfied given that:
1. Ordinary members of the congregation were required to be obedient and submissive to the elders.
2. The elders knew of Mr. Sewell’s previous sexually inappropriate behaviour (e.g., kissing on the lips) when welcoming female members of the congregation.
3. Concerns about Mr. Sewell were raised with his father, another elder.
4. But for Mr. Sewell’s status as an elder and his father’s instruction, the Claimant would have broken off contact with him before the rape occurred.
Despite this, Males LJ did identify several factors that pointed against a finding of vicarious liability, including that:
1. The Claimant was an adult, and it was her choice to continue associating with Mr. Sewell.
2. The rape did not occur whilst Mr. Sewell was undertaking a religious duty.
3. Unlike in the grooming cases there was no acquiescence by the Claimant. On the contrary, Mr. Sewell had forced himself on her violently.
The Defendant appealed again.
Supreme Court
The appeal was allowed. Lord Burrows (with whom the other Justices agreed) provided a detailed analysis of the case law on vicarious liability prior to the Barclays Bank and Morrisons decisions and set out the following five principles derived from thecase law, and which can be summarised as follows.
He then applied these principles to the facts of the instant case. With respect to the first test, Lord Burrows held that there was a relationship akin to employment between the Defendant and Mr. Sewell. However, he considered that by finding that the risk of rape was created by Mr. Sewell being assigned activities as an elder, the lower courts had been “incorrectly confusing the criteria for satisfying the first stage test with the underlying policy justification for vicarious liability” [69].The creation of the risk is not included within the criteria for deciding whether the relationship was akin to employment.
Lord Burrows was particularly critical of the lower courts’ approach to the second limb of the test, both in applying an incorrect version of the test, and in considering factors which should not have been given as much weight. Lord Burrows held that the test was not met for the following reasons:
1. The rape was not committed whilst Mr. Sewell was carrying out activities as an elder.
2. At the time of the rape, and in contrast to the child abuse cases, Mr. Sewell was not exercising control over the Claimant (she went to see him to provide emotional support).
3. The argument that Mr. Sewell had never ‘taken off his metaphorical uniform as an elder’ was rejected as this would excessively expand the number of activities that the Defendant would have been vicariously liable for.
4. Whilst Mr. Sewell’s role as an elder was a ‘but-for cause’ of the Claimant’s continuing friendship with him, ‘but-for causation’ is insufficient to satisfy the close connection test.
5. This was not a case of gradual grooming but rather a one-off attack.
6. The role of Mr Sewell’s father and Mr Sewell’s prior inappropriate sexual conduct had no significance except as background information.
Instead, Lord Burrows agreed with the points set out by Males LJ in the Court of Appeal that pointed away from a finding of vicarious liability. He also briefly considered the policy behind vicarious liability and noted that beyond the Defendant having deeper pockets, there was no good reason to apply the doctrine in this instance.
Implications
On the surface, BXB has not changed the law surrounding vicarious liability all that much. However, it is apparent that despite the two landmark cases of Barclays Bank and Morrisons, there had still been a lack of clarity about what the close connection test involved. BXB has shed some light on this, with the five principles set out by Lord Burrows providing a useful guide regarding the current state of the law in this area.
In particular, the case confirms that the close connection test is perhaps narrower than previously thought, and that but-for causation is insufficient in and of itself to fulfil the close connection test. Following the Supreme Court’s recent trend for the perceived contraction of the scope of vicarious liability that approach is to be expected. Finally, sexual abuse cases have always been somewhat of a difficult area in vicarious liability, and indeed in Morrisons, the Supreme Court considered that in such cases “a more tailored version of the close connection test is applied”.[5] However, in BXB the Supreme Court clarified the position, stating that the rules surrounding vicarious liability apply just the same to sexual abuse cases as any other vicarious liability case. That said, it was also noted that if children are abused by those employed or authorised to look after them, then the close connection test would almost certainly be fulfill
[1] Barclays Bank v Various Claimants [2020] UKSC 13.
[2] WM Morrisons Supermarkets v Various Claimants [2020] UKSC 12.
[3] BXB v Watchtower and Bible Tract Society of Pennsylvania [2020] EWHC 156 (QB) [157], [174].
[4] The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356 [84]
[5] [36]
Call: 2021
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