27 April, 2023
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)  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.
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 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).
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:
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.
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.'
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