Vicarious Liability after BXB

Paula Jefferson and Geneviève Rich comment on the Supreme Court’s judgment in Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent), which was handed down earlier this week.

It was a quick decision after all. 

It only took two months for the Supreme Court to hand down its decision in the case of Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent) [2023] UKSC 15, with the decision reported in a blog post earlier this week. 

The claimant was raped by Mark Sewell, an elder from her local congregation of Jehovah’s Witnesses (JW). She brought a claim for damages against the congregation. She succeeded at first instance and on appeal. The JW appealed to the Supreme Court. The case turned on the elements which constitute vicarious liability: stage 1 (is the relationship between tortfeaser and defendant – or employee and employer – “akin to employment”) and stage 2 (is the tort “closely connected” to that relationship?). 

Lord Burrows (who is an academic lawyer) gave the judgment of the court. He found that the judges below him had made errors of law and considered the matter afresh. He reviewed the numerous authorities in this area, including nine cases in the House of Lords and the Supreme Court since 2001.

The law as to stage 1 had been applied correctly. The relationship between Sewell and the JW organisation was “akin to employment” because he was carrying out work on behalf of, and assigned to him by, the JW; he performed duties in furtherance of, and integral to, the aims and objectives of the JW; and there was a hierarchical structure. The fact that he was unpaid was not a critical factor. Lord Burrows nevertheless criticised the tendency by the judges below to confuse policy reasons and criteria. 

But the law as to stage 2 had not been applied correctly: the correct formulation of the ‘close connection’ test can be found in Morrison (a 2020 Supreme Court case). Applied to this case it meant “whether the wrongful conduct, the rape, was so closely connected with acts that the tortfeasor, Mark Sewell, was authorised to do, that the rape can fairly and properly be regarded as committed by him while acting in the course of his quasi-employment as an elder.”  

In applying the correct test, Lord Burrows focussed on the circumstances where the rape occurred (this was in Sewell’s own home, and not whilst he was engaged in activities such as evangelising or giving pastoral care or a Bible class). He was particularly critical of the suggestion that Mark Sewell never took off his “metaphorical uniform”. This was plainly wrong. He also disagreed with the ‘but for’ test (but for Sewell’s role as an elder the claimant would not have continued to befriend him). Lord Burrows also drew a distinction between this case and cases of institutional abuse (Lister) or child grooming. The claimant was an adult and had agency. Her situation could not be equated with that of children being groomed into acquiescence. 

This appears to be a welcome decision for defendants as it delineates the limits of vicarious liability for religious bodies and similar organisations. But on closer consideration it remains to be seen whether this narrower interpretation applies to cases of institutional abuse or child sexual abuse. While all parties look for clarity, and one interpretation is that we do now have certainty on vicarious liability in cases where there has been a sexual assault, other interpretations have already highlighted potential distinctions which can be drawn where circumstances differ from those which were before the court. In particular are the distinctions referenced above. 

First, that between the abuse of children and the case here where the claimant was an adult. Secondly, that this was a one-off event and not a pattern of grooming leading to subsequent and continuing abuse. Highlighting those distinctions has frustratingly left the door ajar for arguments to be raised that this judgment applies to one off events and adults but not other scenarios. We may therefore see vicarious liability back before the court at some point in the future.