The Supreme Court has handed down its Judgment in the case of Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] and in doing so has found that the Jehovah’s Witnesses are not vicariously liable for the rape perpetrated by an elder of the Barry Congregation.

Background

In 1984, the Claimant and her husband began attending the religious service of the Barry Congregation where they were befriended by Mark Sewell (Sewell) and his wife. Sewell had special responsibilities within the congregation and subsequently became an elder (a senior member of the congregation). By 1989, the friendship between the couples had become close, such that they would visit each other’s homes and holiday together. However, the relationship between Sewell and his wife began to deteriorate, as did Sewell’s behaviour which saw him turn to alcohol and begin to flirt with the Claimant. The Claimant and her husband approached Sewell’s father (who was also an elder) with their concerns about Sewell’s behaviour. In response, they were asked to support Sewell and act as his confidant whilst he struggled with depression.

On 30 April 1990, both couples had been pioneering together, after which they attended a pub lunch where Sewell consumed alcohol and rowed with his wife. Later that day, the Claimant spoke to Sewell whilst at his house in an attempt to persuade him to speak with the elders about his depression and it was during this conversation that Sewell raped the Claimant in a room at his house. On 2 July 2014, Sewell was convicted of raping the Claimant as well as 7 counts of indecently assaulting a minor and another individual. He was sentenced to 14 years imprisonment.

On 8 June 2017, the Claimant commenced an action for damages against the Watch Tower and Bible Tract Society of Pennsylvania and the Trustees of the Barry Congregation alleging they were vicariously liable for the rape perpetrated by Sewell.

Decisions of the earlier courts

At first instance, Chamberlain J made it clear at the outset that it was not necessary to consider the precise nature of the relationship between the first and second defendants because the first defendant had agreed to satisfy any Judgment against the second. Chamberlain J went on to find that the Defendants were vicariously liable for Sewell’s actions when applying the two stage test used in assessing vicarious liability and awarded the Claimant £62,000 in damages.

The Defendants appealed the decision which was unanimously dismissed by the Court of Appeal who held that both stages of the vicarious liability test were satisfied: stage 1 because the relationship between Sewell and the Jehovah’s witnesses was one which was capable of giving rise to vicarious liability and stage 2 because Sewell’s role as an elder was closely connected with the rape perpetrated against the Claimant.

Supreme Court Decision

The leading Judgment which was given by Lord Burrows in the Supreme Court, reaffirmed the two stage test for establishing vicarious liability.

Stage 1: was the relationship between the defendant (the Jehovah’s Witnesses) and the tortfeasor (Sewell) one of employment or which could be said to be akin to employment?

The Court found that the relationship between Sewell and the Jehovah’s Witnesses was akin to one of employment and as such, stage 1 of the test was satisfied. In reaching this decision, we are reminded by the Court that careful consideration needs to be given to those features of the relationship (between the defendant and the tortfeasor) that are both similar to, and different from, a contract of employment. Where the tortfeasor is truly an independent contractor, there will be no vicarious liability (as confirmed in Barclays Bank). With reference to the relationship between the Jehovah’s Witnesses and Sewell amounting to one which was akin to employment, the relevant features identified by the Court were:-

• Sewell was carrying out work on behalf of, and assigned to him, by the Jehovah’s Witnesses;
• The duties that Sewell was performing were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witnesses;
• There was a process within the Witnesses by which an elder could be appointed and by which they could be removed;
• There existed a hierarchical structure into which the role of an elder fitted.

Stage 2: was the wrongful conduct (the rape) so closely connected with the acts that the tortfeasor (Sewell) was authorised to do, that the wrongful conduct could fairly and properly be regarded as having been done whilst the tortfeasor was acting in the course of their employment or quasi-employment?

In layman’s terms, stage 2 of the test assesses whether there was a close connection between the sexual assault and the role held by the perpetrator within the organisation, such that it would be fair to impose vicarious liability. In finding that stage 2 of the test was not satisfied, the following features were of relevance to the Court:-

• At the point at which the rape was perpetrated by Sewelll, he was not carrying out activities as an elder on behalf of the Jehovah’s Witnesses. Rather, he was in his own home and was not engaged in performing work connected with his role as an elder (for example, he was not providing pastoral care nor conducting bible classes at the time);
• When the rape was perpetrated, Sewell was not exercising control over the Claimant because of his position as an elder. Instead, it was because of the Claimant’s close friendship with Sewell and the support she was looking to provide to him as a friend, that the Claimant was at his house;
• Sewell was not ‘wearing’ his metaphorical uniform as an elder at the time the rape was perpetrated;
• Although Sewell’s role as an elder was a ‘but for’ cause of the Claimant’s continued friendship with him, this was not sufficient to satisfy the close connection test;
• The rape of the Claimant by Sewell was not equivalent to the grooming of a child for sexual gratification by a person exercising authority over that child. Whilst the rape of the Claimant was violent and appalling, it was not an obvious progression from what had gone before but rather, a one-off attack.

GB Speciality Commentary:

The Supreme Court decision provides welcome clarity that the two stage test for assessing vicarious liability applies to cases involving sexual abuse in the same way as it does to other cases. The guidance provided in Barclays and Morrisons [2020] remains pertinent when considering applicability of the two stage test in cases involving sexual abuse. There is no separate test for sexual abuse cases, with the Supreme Court stating that “the idea that the law still needs tailoring to deal with sexual abuse cases is misleading. The necessary tailoring is already reflected in, and embraced by, the modern tests”. It would therefore seem that the law of vicarious liability, which Lord Reed notably pronounced as being “on the move” is entering a period of welcomed stability.

Kate Prestidge, Senior Solicitor

Gallagher Bassett Specialty

Kate_Prestidge@gbtpa.com

07858 372428

https://uk.linkedin.com/in/kate-prestidge-05332463