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Update - Law on Vicarious Liability for Sexual Abuse

On 26th April 2023, the Supreme Court delivered its judgment in the case of Trustees of the Barry Congregation of Jehovah's Witnesses (Appellant) v BXB (Respondent) [2023] UKSC 15. This judgment provides clarity on the law relating to vicarious liability and sexual abuse.

Ultimately, the Supreme Court found that the Defendants were not vicariously liable for the rape of a member of the Congregation by an elder.

Facts of the Case

In 1984, Mr and Mrs BXB began attending religious services at the Barry Congregation of Jehovah's Witnesses, where they became close friends with Mr and Mrs Sewell.

Mr Sewell became an elder at the Congregation in 1989, which gave him congregational responsibilities.

Towards the end of 1989, Mr Sewell's behaviour began to change, and he frequently argued with Mrs Sewell. Mr and Mrs BXB provided the Sewell family with support at this time, and it was at this stage Mrs BXB stated that Mr Sewell began flirting with her. Mrs BXB became so concerned about Mr Sewell's behaviour that she and Mrs Sewell went to talk to his father, Tony (also an elder), without Mr Sewell's knowledge. Tony felt that Mr Sewell was suffering from depression and that he needed extra support. Although Mrs BXB believed that Tony was asking her to be friends with Mr Sewell and to help him with his depression, she acknowledged that he did not ask her to be alone with Mr Sewell.

Thereafter, Mr and Mrs BXB duly continued to support Mr and Mrs Sewell.

On 30 April 1990, Mr and Mrs BXB and Mr and Mrs Sewell took part in 'auxiliary pioneering' (a religious activity whereby they would take part in door-to-door evangelising). They had a pub lunch where Mr Sewell drank beer and wine. An argument with Mrs Sewell ensued and she threw whisky over Mr Sewell. He subsequently stormed off. Mr BXB found Mr Sewell outside a solicitor's office with card from a solicitors office. He said he wanted a divorce. Mr BXB reminded Mr Sewell that he could only divorce under the grounds of adultery within the community of Jehovah's Witness, and Mr Sewell replied that 'he would convince Mary [Mrs Sewell] that that ground was made out.'

In the afternoon, while at Mr and Mrs Sewell's home, Mrs BXB went to speak to Mr Sewell to request that he spoke to the elders about his depression. During this conversation, Mr Sewell pushed Mrs BXB to the floor and raped her.

Mr Sewell was sentenced to 14 years' imprisonment after being convicted of raping Mrs BXB (he was also found guilty of indecently assaulting two others) in July 2014.

Mrs BXB brought a claim against the Watch Tower and Bible Tract Society of Pennsylvania and the Trustees of the Barry Congregation for personal injury compensation on 8 June 2017. She believed that the Defendants were vicariously liable for Mr Sewell's actions.

At trial, Mrs BXB was awarded £62,000 in general damages after it was found that the Defendants were vicariously liable for the rape committed by Mr Sewell. This decision was upheld at the Court of Appeal. The Defendants then appealed to the Supreme Court.

The Supreme Court's Decision

The Supreme Court analysed the common law surrounding vicarious liability to establish whether the Defendants could be vicariously liable for the rape committed by Mr Sewell.

Essentially, it was reiterated by the court that there is a two-stage test to be satisfied to establish vicarious liability.

1. Stage 1 - "whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment." (The 'tortfeasor' in this case was Mr Sewell).

• With regards to the first stage test, the Supreme Court found that the relationship between the Jehovah's Witness organisation and Mr Sewell, in his role as an elder, was akin to employment.
• The court gave several examples as to why this was the case: Mr Sewell carried out work on behalf of/assigned to him by the Jehovah's Witness organisation; Mr Sewell performed duties which were integral to the Jehovah's Witness organisation's aims and objectives; there was a process to appoint and remove an elder; and the role of an elder fit in the hierarchical structure of the organisation.
• Therefore, the Claimant satisfied Stage 1 of the test for vicarious liability.

2. Stage 2 -"whether the wrongful conduct was 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 the tortfeasor's employment or quasi-employment" (the 'close connection test').

When considering Stage 2 of the test (the 'close connection' test), the Supreme Court noted that:

• Mr Sewell was not carrying out activities as an elder for the Jehovah's Witnesses when the rape was committed.
• At the time of the rape, Mrs BXB was seeking to provide emotional support to Mr Sewell as a close, personal friend. Mr Sewell was not exercising control over Mrs BXB under his position as an elder.
• Mr Sewell 'was not wearing his metaphorical uniform as an elder at the time the tort was committed.'
• Although Mr Sewell's role as an elder 'was a "but for" cause of Mrs BXB's continued friendship with him, "but for" causation does not satisfy the 'close connection test.'
• It was not felt that Mr Sewell had been grooming Mrs BXB in the same way as a child being gradually groomed for 'sexual gratification by a person in authority.'
• There was no relevance as to the role of Tony Sewell (Mr Sewell's father).

Therefore, Stage 2 of the test was not satisfied in this case. "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."

As the second stage of the test was not met, the Supreme Court found in favour of the Defendants.

Forbes' Comment

The Judgment in this case is extremely significant as the Supreme Court has now provided greater clarity on the 2-stage test relating to vicarious liability in sexual abuse cases. The law governing vicarious liability in such cases is now line with other vicarious liability cases (see the Barclays and Morrisons case, 2020). Notably, the Supreme Court found that 'the same two stages, and the same two tests, apply to cases of sexual abuse as they do to other cases on vicarious liability.'

For more information contact Rebecca McCreadie in our Insurance department via email or phone on 01254 222389. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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