February 6, 2020

Vicarious liability: High Court considers liability for historic sexual assault claim

Pending the long-awaited Supreme Court judgments on the appeals in Barclays Bank and WM Morrisons, the High Court has recently handed down a judgment demonstrating how the current test for vicarious liability continues to be applied.

The Claimant alleged that the worldwide governing body of Jehovah's Witnesses, and the local congregation, were vicariously liable for an indecent assault which she suffered from a member of the congregation who held special responsibilities.

Mr Justice Chamberlain found the Defendants should be held vicariously liable for the assault as it was sufficiently closely connected to the position of the tortfeasor within the organisation.

Background

The Claimant (Mrs B) was baptised as a Jehovah's Witness in 1986. From this period and into the 1990s, the Claimant and her husband were friendly with another couple, Mark and Mary Sewell. 

 Mark Sewell was a 'ministerial servant', a member of the congregation with special responsibilities, and later became an 'elder', a spiritual leader of the congregation.

Following a day of door-to-door evangelising, the two couples returned to the Sewells' home, where Mark Sewell then raped the Claimant.  The Claimant did not report the assault to the elders until 1991 after discovering further unacceptable conduct on the part of Mr Sewell. A 'judicial committee' of elders from a neighbouring congregation was convened.  They found the allegations unproven.

Tthe Claimant ceased to be one of Jehovah's Witnesses years later. Mr Sewell's offences were subsequently investigated by the police and he was convicted, sentenced to several years in prison.

The Claimant suffered various depressive episodes and PTSD after the criminal trial. She issued a claim against the Defendants, setting out two separate heads of claim, one of which specifically alleged that the Defendants were vicariously liable for the trespass (indecent assault) carried out by Mr Sewell.

Vicarious liability

Undertaking a detailed review of the precedent in respect of vicarious liability to date, Mr Justice Chamberlain considered the current two stage test for establishing vicarious liability as set out in Cox and Mohamud, specifically:

  1. Was the relationship between the Defendants and Mark Sewell such that the Defendants can be liable for his tort of trespass on the Claimant?

  2. What were the circumstances of the tort and was there a close connection between the tort of trespass and the relationship between Mark Sewell and the Defendants?

In respect of the first question, it was held that vicarious liability could arise in respect of an elder.  Mr Justice Chamberlain held that within the structure of Jehovah's Witnesses, "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."

He found that the conferring of power and authority to Mr Sewell by the Defendants created the risk of that power being abused.  This was not different to secular organisations.  Consequently, "the relationship between the Defendants and Mark Sewell was capable… of giving rise to vicarious liability."

In respect of the close connection test, the Court found that "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."  For these reasons, the rape was held to be sufficiently closely connected to Mark Sewell's position to make it "just and reasonable that the Defendants be held vicariously liable for it."

What can we learn?

  • The continued emergence of cases such as this can be expected to continue as appreciation and understanding of the true magnitude of historic sexual abuse continues to grow.

  • This is a further example of faith-based organisations being caught by the extended principle of vicarious liability, despite the lack of a conventional employee/employer relationship. Mr Justice Chamberlain highlighted previous examples such as Maga v Archibishop of Birmingham and Various Claimants v Catholic Child Welfare Society.

  • A previous decision involving a congregation of Jehovah's Witnesses, A v Trustees of the Watchtower, was also referenced. Mr Justice Globe had stated in his judgment for that case that "the high level of control over all aspects of the life of a Jehovah's Witness is arguably a closer relationship than that to be found in an employer/employee relationship."