The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356
In an important contribution to the law on vicarious liability, the Court of Appeal has considered an appeal against a decision of Mr Justice Chamberlain, discussed in QMLR by Charlotte Gilmartin here. In that decision, the Defendants were held vicariously liable for the rape of the Claimant by Mark Sewell, an Elder in the Defendants’ church.
The appeal was in respect of both stages of the test for vicarious liability. The Defendant contended that:
- The judge had erred in his conclusion that the activities undertaken by Mark Sewell were an integral part of the Defendants’ business activities, and that the risk of the rape was created by the Defendants assigning those activities to Mark Sewell; and
- The judge erred in concluding that the rape was sufficiently closely connected to Mark Sewell’s position, so as to justify the imposition of vicarious liability.
Stage 1: the relationship
The Court of Appeal upheld the reasoning of the judge below that the activities undertaken by Mark Sewell were an integral part of the Jehovah’s Witness organisation. The following findings, in particular, were endorsed:
- Elders are the spiritual leaders of the congregation;
- An elder may be removed if he fails to maintain the high standards expected of him, whether in performance of his duties as an elder or in his personal life;
- Elders are the principal conduit through which the teachings of the faith are disseminated to congregations;
- In so far as a congregation of Jehovah’s Witnesses acts as a body, it acts through its elders;
- An elder is as integral to the business of a congregation of Jehovah’s Witnesses as a priest is to the “business” of the Catholic Church.
Further, the Court noted that the relationship between the activities and the organisation was yet stronger than the position in A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB), in respect of sexual assaults committed by a ministerial servant.
As to the creation of the risk of the rape, the court observed that the findings of Mr Justice Chamberlain included that the organisation conferred power and authority on its leaders, and made rules for all aspects of its followers’ lives. The court considered that the attempt to re-litigate the factual question of the conferral of power on Mark Sewell by the Defendant was misconceived, in circumstances where it had not been raised at trial.
Stage 2: the close connection
Perhaps the most interesting discussion of principle within the judgment is in respect of the second test, which considered whether the activities of Mark Sewell were sufficiently closely connected with the tort committed by Mark Sewell. The court said as follows at [84]:
“Contained within the tailored test in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailored version of the test applies in cases in which adults are alleged to have been sexually abused as it does in such cases involving children because the rationale for the test is the same. The issue is the connection between the abuse and the relationship between the tortfeasor and the defendant. It is not the particular characteristics of the victim. On the facts of this claim, 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.”
Reference to the ‘tailored test’ is to the dictum of Lord Reed in the Christian Brothers case at [36], that a “more tailored version of the close connection test is applied” in the context of sexual abuse of children. It is well-established that the ‘tailored’ version applies in respect of adult victims of abuse, because the rationale for the test is the same: the relevant considerations are the conferral of authority, and the opportunity for physical proximity.
The decisive factors were that Mark Sewell’s position in the Defendant church was an important part of the reason why the Claimant had associated with him in the first place, that they would not have remained friends with him but for that position, and that the risk had been created or enhanced by the Defendants as they had impliedly instructed the Claimant to continue to associate with him, and invested in him the authority of an elder.
Conclusion
The Court of Appeal judgment is a reminder of the courts’ recognition of the role of ‘grooming’ in the satisfaction of the close connection test. Males LJ described the “essential issue [of] whether it was an abuse of the authority over her conferred on him by virtue of his status as an elder.”
While such a concept is familiar to practitioners in the area, the judgment in BXB is an apposite reminder that the ‘close connection’ often does not relate to the specific act of the assault itself. When considering the tortious act as a whole, the question may be influenced by events long preceding the assaults: in this case, the reason for the initial and ongoing association, and the investment of authority by the Defendant in the tortfeasor.
