Vicarious Liability: Court of Appeal dismisses appeal from religious organisation following sexual assault

Barry Congregation of Jehovah's Witnesses v BXB [2021] EWCA Civ 356

The Court of Appeal has upheld a first instance decision that the worldwide governing body and a local congregation of Jehovah's Witnesses, were vicariously liable for an indecent assault suffered by the Claimant. The assault was carried out by an elder, a member of the congregation who held special responsibilities.

This decision highlights that the second stage (the close connection test) of the two-stage vicarious liability test requires a tailored approach when considering instances of sexual abuse involving both children and adults. This tailored approach is required because sexual abuse cannot be regarded as something done while acting in the ordinary course of a person's employment.

Any such application needs to account for the differences between adults and children, and therefore each case would turn on its own facts. In this instance, the conferring of special responsibilities onto the abuser had “created a considerable risk of wrongdoing.”  The Claimant “had been instructed that it was her religious duty” to help the elder in question, which had put her in the position of being at risk of abuse.

Introduction

The Claimant 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. Despite a ‘judicial committee’ of elders finding the allegations unproven, Mr Sewell's offences were subsequently investigated by the police and he was convicted and sentenced to several years in prison.

At first instance, Mr Justice Chamberlain held that the worldwide governing body and the local congregation were vicariously liable for the sexual assault.

The local congregation (“the Defendant”) appealed. The worldwide governing body had already agreed it would satisfy any judgment against the local congregation.

Grounds of Appeal

The appeal considered both stages of the two-stage test to be applied to issues of vicarious liability namely:

1. The relationship between the tortfeasor and the parties said to be vicariously liable to determine whether it is one that is capable of giving rise to vicarious liability (stage 1);
2. The connection that links the relationship between those two parties and the act or omission of the tortfeasor (stage 2).

There were two grounds of appeal:

1. In his application of stage 1, the judge erred in his conclusion that the activities undertaken by Mark Sewell were an integral part of the "business" activities carried on by the Defendant and that the commission of the rape was a risk created by the defendants assigning those activities to Mark Sewell;
2. In his application of stage 2, the judge erred in his conclusion that the rape was sufficiently closely connected to Mark Sewell's position as an elder to justify the imposition of vicarious liability.

Appeal ground 1 - Was the position of elder akin to employment?

The Defendant had submitted that Mr Justice Chamberlain had oversimplified the analysis of the ‘akin to employment’ test, and that “the part-time volunteer activities of Mark Sewell are more akin to those of an independent contractor”. The Claimant argued that “elders are integral to the organisation…[are] directly controlled by the Jehovah's Witnesses organisation, [and] they are conferred with power by the organisation and its inherent structure.”

The Defendant’s appeal was dismissed.

The Court of Appeal held that the relationship was akin to employment. It was held that the judge did “carry out a searching enquiry into the role of elders”. Elders were the spiritual leaders of the congregation, and insofar the congregation acts a body, it acts through the elders. On this basis, Mr Justice Chamberlain rightly found that the role of an elder was integral to the business of the congregation of Jehovah’s Witnesses.  

Regarding the question of whether the commission of the rape was a risk created by the Defendant in assigning the activities of an elder to Mark Sewell, Lady Justice Davies agreed with Mr Justice Chamberlain. He had found that literature issued by the worldwide organisation created “a risk that its adherents will mistakenly follow the instructions they are given by elders”. There was a risk as an “organisation which confers on its leaders power over others creates the risk that they will abuse it in that way”.

Lady Justice Davies concluded that the position was analogous to that described by Lord Philips in Christian Brothers. It was found that “the elders were the chief conduit of the guidance and teachings of Jehovah's Witnesses, they were not carrying on business on their own account”.

Appeal ground 2 - Was the rape closely connected to the duties of the position?

At first instance, Mr Justice Chamberlain identified the relevant test for focusing on the relationship between the tort and the position of Mr Sewell as the essence of the test in Christian Brothers. In respect of claims involving religious duties, a tailored ‘close connection’ test is required, which is “more open, textured and requires an analysis of all aspects of the relationship between the tort and the abuser's status.”

The Defendant submitted that Mr Justice Chamberlain omitted “consideration of what Mr Sewell was authorised to do”. They argued that “it was no part of his spiritual duties to activate a friendship with [the Claimant]. It was in the context of close friendship that the rape occurred”.

The Claimant submitted that the High Court had applied the tailored version of the Stage 2 test correctly and made legitimate conclusions.

The Defendant’s appeal was dismissed.

The Court of Appeal held that “the tailored version of the test [in cases of sexual abuse] 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”.

For the purposes of the close connection test “what was relevant was the conferral of authority… coupled with the opportunity for physical proximity as between an elder and publishers in the congregation.”

It was held that had the Claimant felt able to end the friendship at an earlier time, she would not have felt compelled to tolerate the increasingly inappropriate behaviour of Mr Sewell.

Lord Justice Males added that in his judgment, that there was “a relationship of power which created a considerable risk of wrongdoing”, and that Mr Sewell “had a belief in his entitlement as an elder to exercise power over others and to act as he desired”.  The rape was sufficiently connected with Mr Sewell’s role as an elder and was an abuse of the authority conferred on him by the Defendant.

What can we learn?

• In his brief judgment, Lord Justice Bean stated that “this appeal is the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences committed by those whom they have placed in positions of responsibility and moral authority”. The respective judgments in the Court of Appeal provided additional guidance on the consideration of vicarious liability in sexual abuse claims.
• There was reiteration that the use of a tailored ‘close connection’ test for the second stage of the vicarious liability was required in child abuse cases. Per Lord Reed in Wm Morrison, “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”.
• This decision emphasised that such a tailored ‘close connection’ test should also be applicable to sexual abuse cases involving adults. Lord Justice Males highlighted that its application would need to account for the differences between adults and children, such as the ability to recognise inappropriate behaviours as an adult. However, “an adult may be susceptible to relationships which involve a risk of abuse, particularly in the context of those spiritual beliefs and doctrines which promote a culture of unquestioned obedience to religious leaders”.
• When considering such claims in the future, parties will have to consider whether the abuser was given status, power and/or authority over the victim, and whether the abuse was distinct and unconnected with the status granted by the religious organisation.