The Supreme Court Examine Vicarious Liability for Rape in the Context of a Religious Organisation
Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15
Introduction
In 1965, Lord Pearce, in the case of Imperial Chemical Industries Ltd v Shatwell [1965] AC 656, described how:
“The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice”.
This analysis remains apt in 2023, the decision in the BXB case in the Supreme Court is another example of how “social convenience and rough justice” can provide harsh results for claimants. In cases of sexual assaults in the context of religious organisations such claimants are sadly often very vulnerable individuals.
The law in relation to vicarious liability has effectively moved and developed through the following decisions which related to responsibility of an organisation for sexual abuse, physical abuse or torture perpetrated by somebody for whom the organisation has responsibility but not necessarily a conventional relationship of employment. This has meant that the Trustees of the Barry Congregation of Jehovah’s Witnesses could potentially have been vicariously liable for a rape committed by one of their elders whereas before the series of decisions set out below it would have been thought:
(a) that they were not vicariously liable for elders who were not formally employed by them and
(b) that in any event a rape was outside the scope of their responsibilities in whatever circumstances it occurred.
Following the decisions referred to below the case was decided on the much narrower issue of exactly where and in what circumstances the rape took place.
The Leading Authorities and the Route to Vicarious Liability
Until the case of Lister v Hesley Hall Ltd [2002] 1 AC 215 none of the cases of sexual abuse by a formal employee, let alone someone only in the position akin to employment, would have succeeded. It was always argued that ST v North Yorkshire CC [1998] 7 WLUK 229 precluded vicarious liability for deliberate acts of abuse by an employee as they could never be carried out in the course of employment. That is, it had been held by the Court of Appeal that, as an employee was never employed to sexually abuse those they had the obligation to care for, they could not be vicariously liable for such action. Surprising as this now appears, it remained the law between 1998 and 2002. Lister was a major step forward in finding the decision in ST v North Yorkshire CC was plainly wrong. The law then developed through the following cases:
- JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938
- Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors [2012] UKSC 56
- Ndiki Mutua v Foreign and Commonwealth Office [2012] EWHC 2678
Subsequently the restated principles in respect of vicarious liability have been considered in a number of different contexts including the following cases:
- Armes v Nottingham CC [2017] UKSC 60 [Liability of local authority for a foster parent – overruling S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150 and Surtees v Kingston-on-Thames Borough Council [1991] 2FLR 559.]
- A v (1) Trustees of the Watchtower Bible & Tract society (2) Trustees of the Loughborough Blackbrook Congregation of Jehovah’s Witnesses (3) Trustees of the Loughborough Southwood Congregation of Jehovah’s Witnesses [2015] EWHC 1722 [Liability for sexual abuse by a Jehovah’s witness]
- Vaickuviene v J Sainsbury plc [2013] CSIH 67 [no liability for fellow-shelf stacker murdering the Claimant’s relative]
- Cox v Ministry of Justice [2016] AC 660 [Liability of the Ministry of Justice for a prisoner injuring an employee in the prison]
- Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 [Liability for assault by petrol attendant on the forecourt of a garage]
- Barclays Bank v Various Claimants [2020] UKSC 13 [No liability for a doctor carrying out occupational health checks as an independent contractor]
- Various Claimants v Wm Morrison Supermarkets plc [2020] UKSC 12 [No liability in respect of employee using data in breach of data protection legislation]
Lord Phillips’ Comments
In the case of: Various Claimants v The Catholic Child Welfare Society and the Institute of Brothers of the Christian Schools & ors [2012] UKSC 56, Lord Phillips explained how:
“The precise criteria for imposing vicarious liability for sexual abuse are still in the course of refinement by judicial decision. Sexual abuse of children may be facilitated in a number of different circumstances. There is currently concern at the possibility that widespread sexual abuse of children may have occurred within the entertainment industry. This case is not concerned with that scenario. It is concerned with the liability of bodies that have, in pursuance of their own interests, caused their employees or persons in a relationship similar to that of employees, to have access to children in circumstances where abuse has been facilitated.”
And
“Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.”
Lord Phillips at [21] referred to a two-stage test for establishing vicarious liability.
“21 …. The test requires a synthesis of two stages: (i) The first stage is to consider the relationship of D1 and D2 to see whether it is one that is capable of giving rise to vicarious liability. (ii) …What is critical at the second stage is the connection that links the relationship between D1 and D2 and the act or omission of D1.”
In the BXB case it was the second stage that was crucial and on which the claim eventually failed in the Supreme Court.
The Facts in the BXB case
Lord Burrows who gave the judgment with whom Lord Reed, Lord Hodge, Lord Briggs, and Lord Stephens agreed summarised the facts at [8] – [21]. In particular the following are relevant to the decision:
- The Barry Congregation of Jehovah’s Witnesses (“the Barry Congregation”) held three weekly religious services.
- Mr and Mrs BXB began attending the religious services of the Barry Congregation in 1984.
- Mr and Mrs BXB became friend with Mr and Mrs Sewell through attending these meetings.
- Mr Mark Sewell became an elder of the Barry Congregation in about 1989.
- The friendship between the Sewell family and BXB family developed to the point they went on holiday together and frequently ate meals together in each other’s houses.
- Towards the end of 1989, Mr and Mrs BXB noticed a change in Mark Sewell’s behaviour. He began to abuse alcohol and appeared depressed.
- Mrs BXB gave evidence that her relationship with the Sewell family would have ended if he had not been an Elder and if she had not received advice from another Elder (Mark Sewell’s father) as to how to support him.
- The rape took place at the Sewell’s house when Mrs BXB was asked by Mark Sewell’s wife to talk to him about consulting the Elders about his depression. A conversation ensued during which Mark Sewell pushed Mrs BXB to the floor, held her down, and raped her.
- The rape was reported to the police after other allegations emerged about Mr Sewell abusing a child.
- A criminal trial took place at which Mrs BXB gave evidence. On 2 July 2014, Mark Sewell was convicted of raping Mrs BXB and of 7 counts of indecently assaulting BXB and another individual. He was sentenced to 14 years’ imprisonment.
The Issues in Respect of Vicarious Liability
At [65] and [66] Lord Burrows considered the stage 1 test and found:
“At the first stage of the vicarious liability analysis, the test to be applied is whether the relationship between the Jehovah’s Witness organisation and Mark Sewell, in his role as an elder, was akin to employment. In my view, the relationship was indeed akin to employment and the decisions of the lower courts were therefore correct at stage 1.
66. Although in his submissions Lord Faulks KC, counsel for the defendants, stressed that the work of an elder was unpaid, whether in money or benefits in kind (such as food and accommodation)—and that an elder was not even entitled to any expenses in carrying out his role—he stopped short of submitting that economic dependence was a necessary feature of a relationship being akin to employment. He was correct to do so. No doubt the fact that there is no payment for the work is an indicator that the relationship is not one akin to employment but it is far from being decisive. The important features here rendering the relationship akin to employment were as follows: that as an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organisation; that he was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation; that there was an appointments process to be made an elder and a process by which a person could be removed as an elder; and that there was a hierarchical structure into which the role of an elder fitted.”
Ultimately therefore the issue was whether the second stage was met. The Judge and the Court of Appeal had held that it was, but Lord Burrows found at [70]:
“At the second stage of the inquiry, with respect, a number of errors were made by Chamberlain J some of which were repeated by Nicola Davies LJ and Males LJ. Neither Chamberlain J nor Nicola Davies LJ set out that the correct “close connection” test was that laid down in Dubai Aluminium drawing on Lister”.
At [73] – [79] Lord Burrows gave 6 reasons for not finding the close connection test met:
- The rape was not committed while Mark Sewell was carrying out any activities as, at the time he was not engaged in performing any work connected with his role as an elder, in effect Mrs BXB was seeking to help Mr Sewell rather than the other way round.
- In contrast to the child sexual abuse cases, at the time of the rape, Mark Sewell was not exercising control over Mrs B because of his position as an elder.
- Mark Sewell was not wearing his metaphorical uniform as an elder at the time the tort was committed.
- Whilst Sewell’s role as an elder was a “but for” cause of Mrs BXB’s continued friendship with Mark Sewell, and hence of her being with him in the back room where the rape occurred, “but for” causation is insufficient to satisfy the close connection test.
- This was not a situation of grooming. The violent and appalling rape was not an objectively obvious progression from what had gone before but was rather a shocking one-off attack. In any event, the prior events owed more to their close friendship than to his role as an elder.
- There was no relevance, except as background, in, for example, the role played by Tony Sewell or the fact that inappropriate kissing on the lips with female members of the congregation when welcoming them was not condemned.
Conclusion
The case is helpful in confirming the stage 1 test was met. The stage 2 test was differently analysed by each of the Judges who examined the case before it reached the Supreme Court and it was acknowledged that there were factors that could be construed wither way. The case is fact sensitive and demonstrates how carefully the close connection case needs to be considered and applied to the relationship between the abuser and the abused.