GHI v TRC: Court’s application of vicarious liability post-BXB

On 3 July 2023, the court in GHI v TRC handed down one of the first decisions in an abuse claim following the recent Supreme Court’s guidance in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses (BXB), in which it found the defendant not to be vicariously liable for abuse committed by a member of a church congregation who helped out with youth work at the church.

Ian Carroll, Partner and Head of Abuse at Keoghs, considers the court’s decision and its application post-BXB.

Background

• The claimant was a member of a church (TRC) and was sexually abused by another member of the church (SAL) while attending church trips between approximately 1974 and 1978.
• While SAL was a family friend, it was alleged that SAL also carried out “youth work” on behalf of TRC and was a youth leader at the church. Accordingly, SAL was responsible for taking care of the claimant while he was away on church trips.
• The claimant disclosed the abuse to his father in 2014 who in turn contacted SAL and he admitted the abuse. The claimant also discussed the abuse with a solicitor who advised him to go to the police.
• After some delays in the criminal proceedings, SAL was eventually convicted upon his own admission of abusing the claimant and sentenced to 12 months imprisonment on 31 August 2017.
• The claimant served a letter of claim in September 2017 and formal court proceedings were issued in January 2019 alleging that TRC was vicariously liable for the abuse committed by SAL.
• The defendant did not dispute the abuse committed by SAL, but denied that it could be vicariously liable for the acts of SAL. It also raised a limitation defence.
• The matter proceeded to trial before His Honour Judge Saunders at Central London County Court.

Judgment

While the court exercised its discretion under s33 of the Limitation Act 1980 to allow the claim to proceed, the court dismissed the claimant’s claim on the basis that the church could not be vicariously liable for the abuse by SAL. Applying the two-stage test approved in BXB the court determined that SAL was:

1. Not in a relationship of employment or “akin to employment”; and
2. Even if SAL was in such a relationship, the abuse he committed upon the claimant was not within the context of any authorised role given to him by the church.

Stage 1

HHJ Saunders analysed BXB and summarised that whether the relationship is “akin to employment” requires careful consideration of the features of the relationship and the extent to which they are “like, or different from, a contract of employment” including payment terms, control, the purpose and objective of the work, the terms of appointment and termination and where the role fits in with the hierarchy.

The court also reiterated that following BXB the court must ensure that it focuses not on the relationship between the claimant and the abuser, but on the relationship between the defendant and the abuser.

In this respect, SAL was a “tent leader” at these church trips where the abuse took place. In order for him to take on this position of responsibility it would have required a reference to be provided by the church. However, there was conflicting evidence as to whether SAL was a “youth leader” or whether he had a specific role within the church at the time of the abuse. The claimant himself described SAL as having a “prominent role”, but the court acknowledged and the claimant accepted that as a child he would have seen any adult (even a young adult as SAL then was) as appearing to have some kind of authority.

In analysing the evidence the court found, therefore, that:

• While a reference was required by the church, the appointment as a “tent leader” was made by the organisation running the camp and not the church.
• There was very little (if any) evidence that SAL was authorised by the church to undertake any particular role in the activities of the church.
• There was a complete lack of any terms, purposes or responsibilities in relation to SAL’s role at the church meaning there was little (if any) evidence that his activities were akin to employment.
• It was more likely than not that SAL was simply a member of the congregation who “helped out” due to the close nature of the church.

Accordingly, SAL was not in a relationship with the church capable of being described as “akin to employment” to render the church vicariously liable for the abuse he committed.

Stage 2

Even if the court was wrong on Stage 1, in any event it found that the evidence did not meet Stage 2 of the test for vicarious liability.

In particular, the abuse was committed as a result of SAL’s appalling criminal conduct and not within “the context of any authorised role given to him” by the church. Further, again applying BXB and the importance of motive, it was caused by SAL’s need for sexual gratification, rather than as a consequence of furthering any needs of the church. In this respect, the court pointed to the fact that abuse had also taken place outside of the context of the church trips (which were not pursued against the church) which indicated that the relationship with the church was not the causal reason for the abuse being committed.

Comment

This court decision represents the first application of the Supreme Court guidance in BXB. The court reiterated the Supreme Court’s view that there are no special rules for sexual abuse cases: the same two stages and the same two tests apply to cases of sexual abuse as they do to other cases on vicarious liability. Accordingly, this decision is reflective of the approach advocated in BXB.

This case is further endorsement of a rejection of arguments which relied upon the opportunity to abuse as being sufficient to give rise to vicarious liability. The case of Lister had made it clear that opportunity alone was insufficient, and the court in this case recognised that while SAL’s membership of the church and position gave him the opportunity to carry out the abuse, the relevant factors for determining vicarious liability are to be found in analysing the actual relationship between the defendant and the tortfeasor, not the circumstances of the relationship between the claimant and the tortfeasor.

This decision is entirely reflective of the more restrictive approach advocated in BXB to the circumstances in which vicarious liability is likely to apply. However, it will be interesting to see how the Court of Appeal approaches such guidance in the recently heard appeal in MXX v A Secondary School in which the decision is currently awaited.