Warning: the case note below may be emotionally challenging for some readers. It contains references to sexual violence and domestic violence. Please exercise caution and self-care when engaging with this material, and seek support if needed.
In Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB, Supreme Court, [2023] UKSC 15, the Supreme Court have taken yet another look at Vicarious Liability. It’s an important decision involving the Jehovah’s Witnesses organisation.
What is Vicarious Liability?
Vicarious liability in tort law is where a defendant is held liable for a tort committed, not because it has committed the action against the claimant directly, but because a third party committed it. A tort is a civil claim, as opposed to a criminal offence.
Until recently, the law was reasonably settled and primarily related to an employer’s liability for the actions of its employees. It required the act to have been committed within the course of employment. So for instance, cases would look at whether something that happened at a Christmas party was ‘within the course of employment’ (probably, is the simple answer for now).
Since 2001, English law has expanded vicarious liability primarily to deal with the many claims for sexual abuse of children. The Court’s approach was really to find a way to give justice to a claimant against a corporate entity rather than the individual committing the act, quite rightly.
Facts of this case
The Appellant in the matter was the Barry Congregation of Jehovah’s Witness although in effect it was the Watchtower Society that was funding the case and they had undertaken to pay any damages.
Mrs B started attending the Barry Congregation in 1984 and made a number of friends, including Mr and Mrs Sewell. Mike Sewell was a ministerial servant and then became an elder in 1989. They became very close friends, families spent time together, went on holidays and so forth. In fact, Mrs B considered Mark Sewell to be her best friend.
Towards the end of 1989, Mark Sewell began to abuse alcohol and appeared depressed. Around the same time, he was alleged to have started flirting with Mrs B, hugging, holding hands, kissing etc. Mrs B was so concerned that she spoke with Mark’s father, another elder. The father said Mark was struggling and needed love and support and asked them to provide extra support to Mark, although he did not specifically ask her to be alone with Mark (and in fact it is not common practice for a JW female to spend time with another man that is not her husband).
That support continued. Mark Sewell at one point asked Mrs B to run away with him, which she rejected.
On 30th April 1990, Mr & Mrs B and Mr & Mrs Sewll were pioneering – door to door evangelising). After they went to a pub. Mark drank, argued with his wide, and stored off. Mr B found him outside with a local solicitor’s business card, saying he wanted to divorce his wife Mary. Mr B said that was not possible as divorce is only permitted in the Jehovah’s Witness organisation on the grounds of adultery. Mark said he would convince Mary that that ground was made out.
Later that afternoon, they all returned to Mark’s house. Mark went into a back room and the others wondered where he had gone. Mrs B went to ‘talk some sense into him’. A conversation ensued, during which Mark Sewell pushed Mrs B to the floor, held her down and raped her.
The rape was not reported to the Elders until 1993, after Mrs B had learned of an allegation made against Mark Sewell by a minor. Mark was removed as an elder. Mrs B decided not to report the matter to the police.
Sometime later, a judicial committee of the Jehovah’s Witness organisation found the allegations against Mark Sewell unproven because they adopt a rule that requires corroboration from another publisher. However, he was later disfellowshipped (expelled) from the organisation albeit for unrelated conduct not mentioned in the Supreme Court.
in March 2013, after learning of an additional allegation against Mark Sewell, Mrs B reported the rape to the police. A criminal trial took place and Sewell was convicted of raping Mrs B and 7 counts of indecently assaulting a minor. He was sentenced to 14 years imprisonment.
Mrs B suffered depression and post-traumatic stress disorder for many years after the rape. In 2017, she commenced a claim for damages against the Watchtower and Bible Tract Society (the corporation that supports Jehovah’s Witnesses).
She alleged that the defendants were vicariously liable for the rape committed, and liability in negligence for failing to adequately investigate the rape and take steps.
In the first case in Court, the Judge decided that the JW Organisation was liable and awarded Mrs B damages of £62,000. The JW Organisation appealed to the Court of Appeal. The Court of Appeal agreed with the Court below.
And so the matter ended up in the Supreme Court. Lord Burrows, with whom the other Lords agreed, gave a thorough review of the law on Vicarious Liability.
The Modern Approach to Vicarious Liability
Having reviewed all the recent case law, the Court pulled together the legal principles and clarified the two stage test:
Stage 1: Whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment – although ‘akin to employment’ is quite wide, looking at factors like: whether the work done is being paid for in money or in kind, how integral to the organisation is the work being done, the extent of the defendant’s control, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, hierarchy of seniority. The Court reiterated that there can be no vicarious liability for someone who is a true independent contractor.
Stage 2 (the close connection test): Whether the wrongful conduct was so closely connected with acts the tortfeasor was authorised to do that it can be fairly and properly be regarded as done while acting in the course of the tortfeasor’s employment or quasi-employment. Here the court deleted the previous wording of “ordinary course of employment’ saying that none of the cases were ordinary.
The Decision of the Supreme Court
There was some discussion about who the actual defendant was in the case. The Trustees of the Barry Congregation didn’t appear to be an actual entity; just the elders of the congregation. The Watch Tower Bible and Tract Society, the charitable corporation which supports activities of Jehovah’s Witnesses worldwide, was determined to be the correct defendant for the purposes of the two-stage test. the Court, and I above, refer to as the JW Organisation.
Stage 1 – Whether the relationship between the JW Organisation and Mark Sewell in his role as elder was akin to employment.
The role was unpaid, whether in money or benefits (even without expenses). Payment is only one factor. The court said that the important features that were ‘akin to employment’ were: that as an elder, Mark was carrying out work on behalf of and assigned to him by the JW Organisation; that he was performing duties in furtherance of their aims; there was an appointments and removals process; there was a hierarchy into which the elder role fitted.
Accordingly, the stage 1 test was met.
Stage 2 – the close connection test – was the rape closely connected to the acts he was authorised to do?
The Supreme Court held that the test failed here.
Firstly, the rape was not committed while Sewell was carrying out any activities as an elder. He was at his own home, not doing any work connected with his role eg conducting a bible study, evangelising, in a service etc.
Secondly, at the time of the rape, Sewell was not exercising any control over Mrs B because of his position as an elder. It was control because of their close friendship. The court said: “Put another way, the primary reason that the rape took place was not because Mark Sewell was abusing his position as an elder but because he was abusing his position as a friend”. And, of course, he was a filthy criminal, but the supreme court didn’t say that.
The Lord concluded:
In my view, therefore, the close connection test is not satisfied. The rape was not so closely connected with acts that Mark 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.
Finally, the Judge said “Clearly the Jehovah’s Witness organisation has deeper pockets than Mark Sewell. But that is not a justification for extending vicarious liability beyond its principled boundaries”.
Steven’s Comments
The case is an important decision, not just for the JW Organisation, but for all church organisations, religious groups and beyond.
While the Courts since 2001 have, rightly, found a way to hold companies and organisations liable for things like child abuse committed, the extension of that to a rape outside the role of the elder was a step too far for the Supreme Court. It is a difficult decision; clearly the lower courts wanted to find a way to make the JW Organisation liable because it had deep pockets and could pay. And even though £62,000 was nothing to the organisation, and a drop in the ocean to the legal costs likely expended by them in taking the matter to the Supreme Court and fighting litigation for 6 years, it was important for the law to be clarified to stop others coming forward with an open hand.
The decision, in my view, is correct and although it leaves Mrs B uncompensated for the rape from the JW Organisation, it was not their fault. That said, the question of negligence (whether they should have done more in their investigation of the rape etc) was not addressed by the Supreme Court on appeal and so who knows whether they should have done more at the time. It would not, however, have stopped the rape from an alcoholic, depressive who had serious issues and is now quite rightly in prison.
If you’re a church, community group, religious organisation etc, or indeed any business, facing a claim against you for vicarious liability and you need expert advice, then get in touch.
