Jehovah’s Witnesses congregation vicariously liable

In The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356, the Court of Appeal has offered further guidance on vicarious liability following Supreme Court decisions last year in VM Morrison Supermarkets PLC v Various Claimants [2020] UKSC 12 and Barclays Bank v Various Claimants [2020] UKSC 13.

As set out in these posts by Robert Kellar QC and Anna Williams, the ‘law of vicarious liability is on the move’ (in the words of Lord Phillips). This case, however, illustrates certain settled principles emerging. In this case, the decision that Barry Congregation was vicariously liable for the rape of Mrs B by Mark Sewell, an elder of the Congregation, in 1990, was upheld.

Facts

Mark Sewell was convicted of the rape (amongst other offences) of Mrs B in 2014. Mrs B suffered episodes of depression and post-traumatic disorder. She brought a claim against, amongst others, the Trustees of the Barry Congregation for the injuries suffered as a result of the rape claiming they were vicariously liable. There was a second limb to the claim related to the investigation and ‘judicial process’ undertaken by the congregation when Mrs B reported the rape to elders in 1991. However, because the High Court found that the Barry Congregation was vicariously liable, the second limb was not considered.

Grounds of Appeal

The test for vicarious liability was identified by Lord Phillips in Catholic Child Welfare Society and Others v Various Claimants and the Institute of Brothers of the Christian Schools and Others [2012] UKSC 56. Two questions are posed:

whether the relationship between the tortfeasor and the party said to be vicariously liable is one that is capable of giving rise to liability;
whether there is a sufficiently close connection between the relationship between the tortfeasor and the party said to be vicariously liable and the act or omission of the tortfeasor.
The appeal was based on two grounds:

The judge erred in the first applied test for vicarious liability by his conclusion that the activities undertaken by Mark Sewell were an integral part of the ‘business’ activities carried on by the defendants and that the commission of the rape was a risk created by the defendants assigning those activities to Mark Sewell.

The judge erred in his application of the second applied test for vicarious liability in concluding that the rape was sufficiently closely connected to Mark Sewell’s position as an elder to justify the imposition of vicarious liability.

Interestingly, the Appellant sought the permission of the court to add a new ground of appeal, namely that the judge had wrongly determined non-justiciable matters of religious dogma. This was given short shrift, with Davies LJ stating that the judge had correctly applied the law and the application was ‘misconceived’.

Legal Background

The judgment offers a useful summary of the law on vicarious liability. Many of these judgments will be very familiar to readers, but it is worth reminding ourselves of some of the case law as set out by the Court of Appeal.

In Maga v Archbishop of Birmingham and Anr [2010] 1 WLR, Lord Neuberger MR (as he was then) identified relevant factors to the issue of ‘close connection’, including the role of trust and responsibility, or moral authority, of a Catholic priest who sexually abused a non-Catholic child who he was working with as his role as a youth worker. In that judgment it was said that whilst the child was not a member of the priest’s congregation, the “progressive stages of intimacy” were only possible because of the priest’s status. This provided the close connection between the abuse and what the priest was authorised to do.

Catholic Child Welfare Society and Others v Various Claimants and the Institute of Brothers of the Christian Schools and Others [2012] UKSC 56 (known as the ‘Christian Brothers’ case) concerned the sexual abuse of Catholic boys by teachers who were employed by a Catholic residential institution. Lord Phillips described ‘the essential closeness of connection between the relationship between the Defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.’ [my emphasis].

In Cox v Ministry of Justice [2016] UKSC 10, Lord Reed stated that the scope of vicarious liability depended upon the relationship between an individual and the defendant, and the manner in which the individual’s conduct was related to that relationship. It was also clarified that the defendant need not be engaged in commercial activities or making a profit from the tortfeasor’s activity. Rather, there may be vicarious liability if the individual carried on activities assigned to him by the defendant as an integral part of the defendant’s operations and for its benefit (whereby the defendant created the risk of the tort being committed).

In Various Claimants v Barclays Bank Plc [2020] UKSC 13, the issue for the Supreme Court was whether a doctor, who carried out medical examinations on behalf of the bank at his home and who was alleged to have sexually assaulted claimants in the course of his examinations, was in a relationship with the bank which was sufficiently akin or analogous to employment so as to make it fair, just and reasonable to impose liability, or whether he was an independent contractor.

The court determined that the doctor was not employed by the bank. He did work for the bank, the bank made arrangements for the examination and sent him forms to complete. The doctor was not paid a retainer which might have obliged him to accept a certain number of referrals from the bank, he was paid a fee for each report. He was free to refuse an offered examination. The doctor would have carried his own medical liability insurance. He was in business on his own account as a medical practitioner with a portfolio of patients and clients, one of those clients was the bank. The bank was held not to be vicariously liable for any wrongdoing by the doctor, who was to be regarded as an independent contractor.

In Various Claimants v Wm Morrison Supermarkets Plc [2020] UKSC 12, Lord Reed commented further on vicarious liability in the context of sexual abuse of children:

… the close connection test has been applied differently in cases concerned with the sexual abuse of children, which cannot be regarded as something done by the employee while acting in the ordinary course of his employment. Instead, the courts have emphasised the importance of criteria that are particularly relevant to that form of wrongdoing, such as the employer’s conferral of authority on the employee over the victims, which he has abused.

The High Court’s judgment

The High Court Judgment identified key conclusions as to the relationship which informed the finding of vicarious liability:

Taking these features of the relationship together, the following conclusions can be drawn:

(a) The fact that Mark Sewell held a position in the Congregation (initially, ministerial servant) was an important part of the reason why Mr and Mrs B started to associate with Mark and Mary Sewell.

(b) But for Mark Sewell’s and Tony Sewell’s position as elders, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape. There was, therefore, the ‘strong causative link’ referred to by Lord Phillips in the Catholic Child Welfare Society case at [86].

(c) The Defendants created or significantly enhanced the risk that Mark Sewell would sexually abuse Mrs B by creating the conditions in which the two might be alone together through (i) Tony Sewell’s implied instruction that she continue to act as his confidante (an instruction which carried the authority conferred by the Defendants because of his position as an elder) and (ii) investing Mark Sewell with the authority of an elder, thereby making it less likely that Mrs B (or others) would question his motives and emboldening him to think that he could act as he wished with little fear of adverse consequences.

(d) The rape took place in circumstances closely connected to the carrying out by Mark Sewell and Mrs B of religious duties at a venue – Mark Sewell’s home – which was ‘approved’ by the elders of the Barry Congregation.

(e) One of the reasons for the rape was Mark Sewell’s belief that an act of adultery was necessary to provide scriptural grounds for him to divorce Mary. His mindset, in which he appears to have equiparated rape and adultery, was closely bound up with his position as an elder.”

Court of Appeal’s judgment

The Court of Appeal concurred. It was emphasised that, with similar themes to Christian Brothers, but for Mark Sewell’s position as an elder within the congregation, Mrs B would not have remained friends with him, and his wife, until the time of the rape. The judgment states:

It is clear from the evidence of Mr Schofield that the Jehovah’s Witness organisation is central to the lives of its publishers, ministerial servants and elders. Its structure could fairly be described as hierarchical. It exercises control over its members, which goes beyond activities directly related to the dissemination of the Kingdom message. It discourages socialising outside the organisation. It permits only men to become ministerial servants or elders, identifying elders as overseers who were responsible for taking the lead in caring for the “sheep-like-ones” … The hearts of the congregation are said to be motivated to cooperate with such loving overseers. The congregation was informed that they would be helped to obey and honour those taking the lead if they remember that God himself has provided the elders … The elders are said to be trained to be kind, loving and helpful, yet “firm” in upholding Jehovah’s righteous standards.”

It was accepted that an elder is as integral to the ‘business’ of a congregation of Jehovah’s Witnesses as a priest is to the ‘business’ of the Catholic Church.

As to stage 2, and whether there was a close connection between the relationship between the tortfeasor and the organisation and the act or omission of the tortfeasor, the following was said:

Contained within the tailored test in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailored version of the test applies in cases in which adults are alleged to have been sexually abused as it does in such cases involving children because the rationale for the test is the same. The issue is the connection between the abuse and the relationship between the tortfeasor and the defendant. It is not the particular characteristics of the victim. On the facts of this claim, what is relevant for the purpose of the close connection test is the conferral of authority by the Jehovah’s Witness organisation upon its elders, coupled with the opportunity for physical proximity as between an elder and publishers in the congregation.

Males LJ offered an alternative explanation as to the second stage, emphasising the relationship of power and the direct role in the immediate circumstances of the rape.

All three judges dismissed the appeal and agreed that the fact Mrs B was an adult when she was raped, rather than child victims of sexual abuse as in many of the other vicarious liability cases, did not differentiate the case. Even an adult may be susceptible to relationships which involve a risk of abuse.

Conclusion

The case offers further guidance for  vicarious liability and sexual offences committed by those in positions of responsibility and moral authority, and further confirms and, to a lesser extent, widens the scope for future claimants in this regard.