Background
GHI ('the Claimant') was sexually abused by SAL between 1974-1978, (from the age of 6 until 10 years). The Claimant and SAL's families were close, being friends and business partners and the two families were prominent at the local chapel, where SAL carried out youth work during that period on behalf of the church. The Claimant's mother died of leukemia when the Claimant was six years old and his father then allowed the Claimant to be looked after, on occasion, by SAL, including babysitting (at SAL's house) and also when the Claimant was away on church trips.
SAL's role within the church was a central feature of this case, with the crucial questions to be determined being whether the connection to the abuse arose out of the family relationships or any role/office that SAL may have held within the chapel. Pre-trial and post the Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] ('BXB') decision it was accepted that the Defendant could not be vicariously liable for the abuse that occurred whilst babysitting.
The claim therefore focused on abuse that occurred during separate incidents when the Claimant attended a Yorkshire Sunday School camp at Howden where he shared a tent with SAL (who was allegedly a tent leader) and abuse that occurred on a trip to Brecklands, in which SAL was alleged to have supervised the Claimant and shared a bedroom with him.
Whilst the Defendant accepted that the abuse took place, they defended these proceedings upon the basis that they were time barred by operation of the Limitation Act 1980 and that in any event, the Defendant was not vicariously liable for the acts of SAL.
HHJ Saunder's findings
HHJ Saunders dismissed the claim. Although he was minded to exercise his s.33 discretion in relation to the first point; namely to extend the time limit for the purposes of limitation in the Claimant's favour, he found that the Defendant was not, however, vicariously liable for the sexual abuse of the Claimant by SAL.
Limitation
The proceedings should have been issued by 15 September 1988 (when the Claimant turned 21 years of age – 3 years after his majority). However, they were not issued until 9 January 2019 – 31 years and 4 months after the cause of action first arose.
HHJ Saunders accepted that there clearly was "a significant delay" and that the case had "some similarities with RE v GE [2015] EWCA". He also noted that the only surviving trustee of the Chapel from the relevant period was the Claimant's father, who did not give evidence at trial, and recognised that his evidence "would be most important particularly due to the close relationship between members of the church who would be involved at that time (and subsequently) with its organisation".
Whilst it was self-evident that witness's recollections would fade after so many years, HHJ Saunders had been able to hear from the Claimant himself along with two of the Defendant's witnesses (one being a former Sunday school teacher and the other a preacher at the time). In his view, all three of these witnesses were able to give cogent evidence, despite the passage of time and accordingly he considered it equitable to allow the proceedings to proceed. In reaching this determination, he highlighted the following reasons:
- Whilst cogency is important, he found that it was not so substantially affected by delay in this case in view of the facts applicable to the case and the evidence adduced at the trial.
- The Claimant's reasons for the delay were understandable, which were underpinned by the evidence of the medical experts adduced by both parties and which was largely agreed.
- The Claimant acted with speed to issue these proceedings as soon as the criminal trial was concluded.
Vicarious liability
The application of vicarious liability requires the synthesis of two stages. We discuss each in turn below:
First Stage – the nature of the relationship between the tortfeasor and the defendant
HHJ Saunders found there was very little evidence to support the contention that SAL was authorised by the Defendant to undertake any particular role in the activities of the church. In particular, he found, there was little (if any) evidence that SAL's activities (such as they were) were sufficiently akin to employment or quasi employment to be capable of giving rise to vicarious liability. He pointed to how in this case, there was a complete lack of any terms, purposes or responsibilities in relation to this role. It was more likely than not, that SAL was simply a member of the congregation who "helped out" due to the close nature of the church. Other relevant factors included:
- Vicarious liability cannot be satisfied simply upon the basis that SAL was a member of the congregation.
- SAL was a relatively young man at the time of these deplorable incidents (c.18 years old). Given this fact, common sense dictates that his responsibility is likely to have been reduced.
- The Defendant's principal witness knew the Claimant and SAL, and remembered them both well. There was clear evidence from her that she could not recall SAL having a specific role within the church at the time. It was also her belief that any form of youth club did not start until around 1999/2000, long after these incidents of abuse took place. This evidence was also largely supported by another Defendant witness who had been a member of the congregation and who did not recall anyone being described as a "youth leader".
- After having delved into the evidence from connected criminal trials, there was very little supportive evidence of there being a "youth leader". In cross-examination, SAL had denied being in that role. Whilst there were passing references to him being a "youth leader" in the various criminal trials, the weight of this evidence was one of secondary hearsay.
- The context of the allegations of abuse at the Yorkshire Camp related to SAL's role within the Yorkshire Camp itself as opposed to any role in the Chapel, which the Claimant's witness evidence supported. Similarly, the incident at Brecklands was simply described as a "church outing" and no role was attributed to SAL.
- Within the Claimant's oral evidence, he candidly confirmed that, when he was that age, "everyone appears that much older and having authority".
- There was discussion that the Claimant may be mistaken about SAL's role, as the unchallenged evidence of Mr Field, the Claimant's witness confirmed that the Claimant had told him that the abuse took place when he was "babysitting". It was recognised that this infers that the abuse did not stem from any authority that SAL may have had.
- The Defendant's main witness described a long weekend church trip to Brecklands, which corroborated other evidence submitted by the Defendant, namely a note from the Claimant's father stating that he was unable to attend the trip, that the Claimants grandparents attended instead and the Claimant shared a room with SAL. HHJ Saunders formed the view that the Defendant's witnesses recollection was likely to be accurate and the fact that she could not recall if SAL was present or not, was indicative of him being unlikely to have had any authority.
- In relation to abuse that took place at the event run by the Yorkshire Camp, any appointment to a position of authority would have been made by them, and not the Defendant.
Second Stage - the connection between the stage one relationship and the tort
With regard to the second stage of the test, HHJ Saunders found that in applying his findings from the evidence above, Stage 2 of the test was not met either. He found that the incidents of sexual abuse committed by SAL were as a result of his appalling criminal conduct and not committed within the context of any authorised role given to him by the Defendant. Furthermore, he considered that motive was as discussed in BXB and concluded that it was more likely than not that the incidents were caused by SAL's need for sexual gratification rather than any connection with any relationship between SAL and the Defendant Chapel.
In support of this, HHJ Saunders referred to the fact that other incidents took place outside of this context where the Defendant was not directly involved.
Conclusion
The judgment illustrates that the issue of limitation and vicarious liability often go hand in glove. Whilst the clear cogency of the Defendant's evidence persuaded HHJ Saunders that it was equitable to exercise s.33 discretion, it was also the strength of that evidence that persuaded HHJ Saunders to find that there was no sufficient relationship between SAL and the Defendant to satisfy Stage 1 of the test for vicarious liability.
That evidence also played a significant role in HHJ Saunders view that there was no connection between any relationship between SAL and the Defendant and the incidences of abuse to satisfy Stage 2 of the test.
The clear guidance provided by the Supreme Court in BXB (on which HHJ Saunders relied) pulls together the many judicial developments as to the correct approach to vicarious liability and provides a helpful roadmap for cases where there is a dispute as to whether a relationship between a tortfeasor and a defendant is sufficient to give rise to vicarious liability and also where there is a dispute about how far the connection between a tort and a relationship between the tortfeasor and defendant may stretch.
In the present case, as with many cases we have seen over recent years, the connection between the relationship between the tortfeasor, the Defendant and the tort in question was somewhat coincidental and HHJ Saunders made a useful observation that the mere involvement in undertaking activities associated with the Defendant's enterprise (i.e. getting involved in youth work at a chapel) is not sufficient for a relationship to be considered akin to employment. Vicarious liability cannot be satisfied simply upon the basis a person was a member of the congregation. To satisfy Stage 1 of the test the tortfeasor must be properly integrated into the enterprise sufficient to amount to employment or quasi employment.
For further information, please contact Paul Donnelly or Bushra Ali
For further reading see our recent update: Vicarious liability in abuse claims Supreme Court addresses close connection test
