Supreme Court allows appeal in abuse claim: BXB and further restrictions to vicarious liability

The Supreme Court has handed down its judgment allowing an appeal to find that the Jehovah’s Witnesses could not be vicariously liable for the rape by an elder of the church.

This decision represents yet a further indication of the direction of travel on the scope and application of vicarious liability in which the Supreme Court acknowledged had previously been subject to an expansive redrawing of our boundaries in the 21st century.

Ian Carroll, Partner and Head of Abuse at Keoghs and Patrick Williams, Associate, consider the Supreme Court decision and potential implications for future claims.

Background

In 1984 the claimant and her husband first attended the Kingdom Hall in Barry, South Wales, which was the meeting place of the Barry Congregation of Jehovah’s Witnesses. In 1986 the claimant was baptised as a Jehovah’s Witness. As a result, the claimant and her husband became friendly with another couple, Mr Sewell and his wife. Sewell had special responsibilities within the group and later became an ‘elder’, which is a senior member of the congregation. 

The claimant and her husband were asked by Sewell’s father, who was also an elder, to act as confidants to Sewell because he was ill. There was a history of inappropriate behaviour by Sewell towards the claimant. In 1990, the claimant and her husband with Sewell and his wife had been pioneering which was the central religious duty of Jehovah’s Witnesses. Afterwards, Sewell raped the claimant in a room in his house, which was an approved venue for Jehovah’s Witnesses meetings to take place.

At first instance and in the Court of Appeal it was held that the relationship between Sewell and the Jehovah’s Witnesses was capable of giving rise to vicarious liability for acts of sexual abuse by Sewell and on members of the congregation (stage 1).

It was also found that the rape by Sewell was closely connected to his role as an elder on the basis that his senior position played an important role in why the claimant and her husband initially began to associate with him, and because the Jehovah’s Witnesses significantly enhanced the risk of Sewell sexually abusing the claimant by creating the conditions in which the two might be alone together (stage 2).

The Jehovah’s Witnesses were granted permission to appeal to the Supreme Court on the grounds of vicarious liability for both stage 1 and 2.

Supreme Court Judgment

Lord Burrows, with which the other Supreme Court judges unanimously agreed, allowed the Jehovah’s Witnesses appeal and found:

1. Sewell was in a relationship “akin to employment” with the Jehovah’s Witnesses to render them vicariously liable for any abuse he committed (stage 1); however
2. The rape of the claimant did not occur so closely connected with acts that Sewell was authorised to do, that it can be fairly and properly regarded as committed by him while acting in the course of his quasi-employment as an elder (stage 2).

Stage 1 - Was the relationship between the defendant and Sewell capable of giving rise to vicarious liability?

The Supreme Court refused to allow the appeal on stage 1 of vicarious liability on the basis that there was a relationship akin to employment between Sewell and the Jehovah’s Witnesses. The important features in this case which supported a finding akin to employment under stage 1 included:

• As an elder Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witnesses.
• He was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witnesses.
• There was an appointments process to be made an elder and a process by which a person could be removed as an elder.
• There was a hierarchical structure into which the role of an elder fitted.

Notwithstanding that the Supreme Court agreed with the first instance and Court of Appeal’s analysis on stage 1 of vicarious liability, it disagreed with their reliance on the “creation of risk” criteria as set out by Lord Reed in Cox when considering the stage 1 question. 

In particular, it was “a mistake for them to drift into talking about creating the risk of rape by the elder being assigned the activities he was given.” The Supreme Court said they had incorrectly confused the criteria for satisfying the first stage test with the underlying policy justification for vicarious liability. The creation of the risk of rape should not therefore have been included within the criteria for deciding whether the relationship was akin to employment and was only relevant to stage 2.

Stage 2 - Was there a sufficiently close connection between Sewell’s actions and the defendant, to make the defendant vicariously liable for the tort?

The Supreme Court identified a number of errors which had been made at first instance and by the Court of Appeal. These included: 

The “early flowering of the friendship” between Sewell and the claimant should have had no relevance to vicarious liability except as background;

• “But for” causation should not have been afforded the prominence it was given;
• The role of Sewell’s father was essentially irrelevant except as part of the background because he was not the person who committed the tort;
• The fact that, before lunch on the day of the rape, the claimant and Sewell had been on pioneering activities was again essentially irrelevant except as background;
• Sewell’s distorted view, equating rape and adultery, should have had no significance.

Of particular importance was clarification on the correct test for stage 2 vicarious liability, which should have been as follows:

“Whether the wrongful conduct, the rape, was so closely connected with acts that the tortfeasor, Mark Sewell, was authorised to do, that the rape can fairly and properly be regarded as committed by him while acting in the course of his quasi employment as an elder.”

In applying the above the Supreme Court found the claimant had failed to satisfy this test for the following reasons:

1.     The rape was not committed while Sewell was carrying out any activities as an elder on behalf of the Jehovah’s Witnesses. 

• He was at his own home and was not at the time engaged in performing any work connected with his role as an elder. 
• He was not conducting a bible class, he was not evangelising or giving pastoral care, he was not on premises of the Jehovah’s Witnesses and the incident had nothing to do with any service or worship of the Jehovah’s Witnesses.
• The lack of direct connection to the role assigned to him as an elder makes these facts significantly different from institutional sex abuse cases where as part of their jobs they were on institutional premises looking after children or living in the same institution as their victims.

2.     At the time of the rape, Sewell was not exercising control over the claimant because of his position as an elder.

• It was because of her close friendship with Sewell and because she was seeking to provide emotional support to him, and not because Sewell had control over her as an elder, that the claimant went to the back room.
• The driving force behind their being together in the room at the time of the rape was their close personal friendship, not Sewell’s role as an elder.
• Sewell was not abusing his position as an elder but abusing his position as a close friend of the claimant when she was trying to help him.

3.     Sewell was not wearing his “metaphorical uniform” as an elder at the time the tort was committed.

•  It was unrealistic that Sewell’s metaphorical uniform was never taken off in his dealings with members of Barry Congregation such as the claimant.

4.     “But for” causation was insufficient to satisfy the close connection test

• It was accepted that Sewell’s role as an elder was a “but for” cause of the claimant’s continued friendship with Sewell and hence her being with him in the back room where the rape occurred.
• However, this is not enough to find a close connection between the wrongful conduct and the acts Sewell was authorised to do.

5.     The rape was not equivalent to the gradual grooming of a child for sexual gratification by a person in authority over that child.

•  The violent and appalling rape was not an objectively obvious progression from what had gone before but rather a shocking one-off attack.
• The prior events owed more to their close friendship than to his role as an elder.

In summary, the Supreme Court found that the close connection test was not satisfied and the rape was not so closely connected with acts that Sewell was authorised to do that it can fairly and properly be regarded as committed by him while acting in the course of his quasi-employment as an elder.

The Supreme Court’s comments on the application of enterprise liability or risk are also particularly valuable in the sense that they confirmed that there was no convincing justification for the Jehovah’s Witness organisation to bear the cost or risk of the rape committed by Sewell. In particular, whilst the Jehovah’s Witness had deeper pockets than Sewell, they made it clear that this was not a justification for extending vicarious liability beyond its principled boundaries.  This latter point helpfully eliminates one of the Lord Phillips factors in Christian Brothers which the Supreme Court in this case seems to indicate had “little, if any, force”.

Comment

This decision represents a faithful application of the corrective Supreme Court guidance in Barclays and Morrisons provided in April 2020. It represents a clear rebalancing of the tests which for some time had been “on the move” into ever expanding circumstances in which vicarious liability would apply. However, following the more restrictive approach recently taken by the Supreme Court in relation to stage 1, they have taken this opportunity to provide much needed clarity to similarly restrict the scope of the close connection test under stage 2.

It is also significant that the Supreme Court have now made it clear that there will be no special rules for sexual abuse cases when considering issues of vicarious liability. In particular, the same two stages and the same two tests apply to cases of sexual abuse as they do to other cases on vicarious liability. Indeed, they went so far as to state that it is misleading to suggest that the law still needs tailoring to deal with sexual abuse cases. In any event, given much of the case law which has been responsible for the development of vicarious liability has been sexual abuse cases, this lends weight to the fact that any necessary tailoring is already reflected in and embraced by the modern tests. As a result and whilst previously “on the move”, it does seem to suggest so far as the Supreme Court is concerned that the law on vicarious liability may now have come to a much needed rest.

For more information, please contact Ian Carroll, Partner, or Patrick Williams, Associate