Vicarious liability in abuse claims – Supreme Court addresses close connection test

Lord Phillips has certainly been proven right... When in The Catholic Child Welfare Society & Ors v Various Claimants & The Institute of the Brothers of the Christian Schools & Ors [2012] he described the doctrine of vicarious liability as being "on the move", few could have predicted that that case would be the start of a run of seven Supreme Court decisions on the issue of vicarious liability in less than 10.5 years.

The judgment in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023], which the Supreme Court handed down yesterday, represents a significant and helpful clarification of the application of the doctrine in cases which over recent years has expanded to one in which we have seen an increasing volume of cases brought where the connection between the relationship between the tortfeasor and defendant and the tort in question has been seemingly coincidental to the occurrence of the tort.

Paul Donnelly (Partner) and Sam Dawber (Associate) act for the Defendant/Respondent in MXX v A Secondary School which will be before the Court of Appeal in June. That is a case where at first instance, the court found that (a) the relationship between a school and a work experience student was not capable of giving rise to vicarious liability and, in any event, (b) the connection between that relationship and the work experience student's abuse of the claimant some time after the work experience placement was not sufficiently close to give rise to vicarious liability.

Below, Paul and Sam discuss Lord Burrows' judgment in BXB which provides helpful guidance in cases such as the MXX appeal where there is a dispute about how far the connection between a tort and a relationship between the tortfeasor and defendant may stretch.

Facts

In 1984, Mr and Mrs B started attending the Barry Congregation of the Jehovah's Witnesses. They became very close friends with Mark and Mary Sewell, to the extent that Mrs B considered Mark Sewell her best friend. Mark Sewell was an elder of the congregation.

Towards the end of 1989, Mark Sewell's behaviour changed. He started abusing alcohol and became depressed. He started to flirt with Mrs B, hugging her, kissing her and confiding in her. Mrs B spoke to Mark Sewell's father, who was also an elder, who advised Mrs B that Mark Sewell was depressed and needed love and support.

On 30 April 1990, Mr and Mrs B and Mr and Mrs Sewell went out door-to-door evangelising. Afterwards, they went to the pub for lunch and drank alcohol. Mark Sewell and his wife had an argument, and Mark Sewell stormed off. Later that same afternoon, Mr and Mrs B went to the Sewells' house with their children. At some stage, Mark Sewell went into a back room alone and Mrs Sewell asked Mrs B to see if she could 'talk some sense' into him. Mrs B went to speak to Mark Sewell to try to convince him that he should go to the elders about his depression. In the ensuing conversation, Mark Sewell pushed Mrs B to the floor and raped her.

In 2014, Mark Sewell was convicted of raping Mrs B, and sexually assaulting two other individuals. He was sentenced to 14 years imprisonment.

In 2017, Mrs B started an action against the Jehovah's Witness Organisation (the Appellant) for, inter alia, psychiatric harm, alleging they were vicariously liable for the rape of Mrs B by Mark Sewell. 

Mrs B's claim succeeded in the High Court and the Court of Appeal. The Jehovah's Witness Organisation appealed to the Supreme Court. The question was whether the Appellant was vicariously liable for the rape of Mrs B by Mark Sewell.

The legal test

Lord Burrows, delivering the judgment of the Supreme Court, noted that the relatively settled test for vicarious liability has been "redrawn and expanded" in the last two decades, primarily to deal appropriately with the sexual abuse of children.

There are two stages to the test for establishing vicarious liability. The first stage of the test is whether the relationship between the defendant (in this case, the Appellant) and the tortfeasor (Mark Sewell) is one of employment or akin to employment.

The second stage is whether the wrongful conduct of the tortfeasor is so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of his employment or quasi-employment.

In most cases, the answer to whether vicarious liability should be imposed will be apparent without the need to consider the underlying policy. But in difficult cases, it can be useful to consider the policy justification underlying the imposition of vicarious liability.

The Supreme Court judgment

The Supreme Court unanimously allowed the appeal, finding that the Appellant was not vicariously liable for the rape of Mrs B by Mark Sewell.

First Stage – the nature of the relationship between the tortfeasor and the defendant

With regard to the first stage of the test, the Supreme Court agreed with the lower court in finding that the relationship between Mark Sewell and the Jehovah's Witness Organisation was sufficiently akin to employment to be capable of giving rise to vicarious liability. This was the case even though he was not employed by them or paid by them. The factors that were relevant to establish this were:

1. Mark Sewell was carrying out work on behalf of and assigned to him by the Appellant. 
2. He was performing duties that were in furtherance of and integral to the aims and objectives of the Appellant. 
3. There was an appointment process to become an elder and a process by which a person could be removed as an elder
4. There was a hierarchical structure at the organisation into which the role of an elder fitted.

Second Stage - the connection between the stage one relationship and the tort

The Supreme Court disagreed with and overturned the decision of the lower courts with regard to the second stage of the test. Mark Sewell's wrongful conduct was not so closely connected with acts that he was authorised to do by the Appellant that it can fairly and properly be regarded as done by him whilst acting in the course of his quasi-employment for the Appellant.

In reaching this determination, the Justices highlighted the following factors:

1. The rape was not committed whilst Sewell was carrying out any activities as an elder on behalf of the Appellant.
2. He was not exercising control over Mrs B as a result of his role as an elder. It was because of Mrs B's close friendship with Sewell, and not due to his role as an elder, that caused Mrs B to go to the back room with him at the time he committed the rape. The "driving force" was the friendship, not Sewell's role as an elder. The Justices expressly contrasted this to child sexual abuse cases in which the tortfeasor's control over the child is the driving force behind the abuse.
3. It was unrealistic to say that Sewell was always wearing his "metaphorical uniform" as an elder in his dealings with members of Barry Congregation.
4. Whilst the Justices accepted that Sewell's role as an elder was a 'but for' cause of Mrs B still being friends with him and hence being in the back room with Sewell when he raped her, 'but for' causation is insufficient to satisfy the close connection test required for vicarious liability.
5. This case is not equivalent to the gradual grooming of a child for sexual gratification by a person in authority over that child. It was not "an objectively obvious progression from what had gone before", but a shocking one-off attack.
6. The role of Sewell's father and the failure of the Appellant to condemn Sewell's inappropriate behaviour in kissing members of the congregation were not relevant except as background.

The Justices considered the policy underpinning vicarious liability, which Lord Burrows said was the policy of “enterprise liability or risk”. They held that the policy consideration confirms that there is no convincing explanation for the Appellant bearing the cost or risk of Sewell's tort. The Appellant has deeper pockets than Sewell, but Lord Burrows stated that is not a principled justification for extending vicarious liability.

Comment

The Supreme Court acknowledged that there has been an expansion of vicarious liability in the last two decades. This decision is the latest in a series of cases in the last few years that have perhaps started to find the edges of that expansion or even start to roll it back. 

Significantly, the Justices state clearly that 'but for' causation (i.e., that the friendship had flowered out of their mutual involvement as Jehovah's Witnesses, without which the tort would not have occurred) is insufficient to establish a close connection for the purposes of vicarious liability. That is a step further than the proposition (but certainly reinforces the point) that a stage 1 relationship which is merely coincidental to the occurrence of the tort is not sufficient to impose vicarious liability.

The surrounding circumstances of the case, and the fact that Mrs B and Sewell had met at the Barry Congregation and had been out together evangelising on the day of the rape, as well as the fact that Lord Burrows' judgment suggests that the rape was immediately preceded by Mrs B suggesting that Sewell ought to speak to the elders about his depression – was insufficient to establish the required close connection.

This decision can be contrasted with the Court of Appeal's decision in Maga v Birmingham Roman Catholic Archdiocese Trustees [2010] EWCA Civ 256 in which a Roman Catholic Priest's position of authority within the wider community was held to be a relevant factor when imposing vicarious liability (interestingly, despite the heavy reliance on the Maga decision in the Court of Appeal judgment in BXB, there is no reference at all to the Maga case in Lord Burrows' judgment). There may be grounds to distinguish Sewell's role as an elder with the Jehovah's Witnesses on a factual basis. Perhaps of more significance, though, is that Lord Burrows was careful to distinguish the facts in BXB from cases of child grooming leading to sexual abuse, where there is "an objectively obvious progression from what had gone before" – i.e., where a tortfeasor is exercising control over the claimant because of the stage one relationship perhaps placing them in a position of authority over a child.

Also important is that the case goes some way to address the public policy justification behind the application of the doctrine of vicarious liability. Lord Burrows addresses that wanting to provide compensation for victims of abuse from those with deeper pockets is not of its own a valid policy justification for extending vicarious liability beyond its principled boundaries. In our view, that is a helpful clarification to what has been at times a contentious point following the inclusion by Lord Phillips of the fact of insurance as a consideration behind the application of the doctrine in the Christian Brothers case back in 2012. In our view, prudent individuals and organisations should take out insurance because they may have a liability – they should not have a liability because they may take out insurance.