The latest Vicarious Liability instalment – the boundaries tighten.
On 26 April 2023, the UK Supreme Court provided its judgement in Trustees of the Barry Congregation of Jehovah's Witnesses (Appellant) v BXB (Respondent). This case arose from the rape of a female member of the Barry Congregation of Jehovah's witnesses (the congregation) by an elder of the congregation. The elder, Mark Sewell, was convicted of the rape and there was no dispute in relation to the circumstances and details of the attack.
The case was appealed on the claimant's contention that the congregation, or the overarching organisation, should be vicariously liable for Sewell's actions. The Supreme Court disagreed.
The decision offers a good opportunity to recap what has been quite an active and uncertain time for the doctrine of vicarious liability. For a while it seemed that the boundaries of vicarious liability were moving ever outwards. Indeed, for a while, it seemed that the long held principles that there will be no vicarious liability for an independent contractor nor for the actions of an employee "on a frolic of their own" had been lost. However, the uncertainty was set aside by a pair of judgements handed down by the Supreme Court in April 2020. Various claimants v. Morrison Supermarkets PLC and Various claimants v. Barclays Bank. This most recent decision builds on the clarity gained from those decisions.
The claimant was violently raped by Sewell when they were at Sewell's home. They had not been engaged in activities related to the congregation at the time. They had however become close friends, along with their spouses, to comply with the requirement of the congregation that they socialise with other members. Furthermore, when Mark Sewell's behaviour had deteriorated in the period before the rape, the claimant had been instructed by Sewell's father, another elder of the congregation, to remain Sewell's close friend and to continue to provide him with emotional support. At first instance, it was held that but for that instruction, the claimant would no longer have been friends with Sewell by the time of the rape.
At first instance, and on appeal to the Court of Appeal, it was found that the claimant satisfied both limbs of the test for vicarious liability – 1. the existence of a relationship of, or akin to, employment, 2. the tort ("wrong") was sufficiently closely connected to that employment/ activity or was committed in the ordinary course of that employment.
In the leading judgement, Lord Burrows emphasised the need to separate the underlying policy justification for vicarious liability from the criteria for determining whether it arises in a particular case.
In this case, while he concluded that there was a relationship akin to employment which satisfied the first limb of the test for vicarious liability, he did not believe that the rape was sufficiently closely connected to that relationship for the defendant to incur a vicarious liability.
He found that the judge at first instance and the Court of Appeal had erred in law when considering the second limb, by taking into account factors which were irrelevant to that question and by affording too much significance to others.
When he considered the second limb afresh, Lord Burrows concluded that the rape was not sufficiently connected to Sewell's position in the congregation. In reaching that conclusion, it was relevant that the attack did not occur while they were carrying out activities to further the congregation's aims and that the rape was not an obvious progression from Sewell's inappropriate behaviour before the rape. Lord Burrows didn't consider that the instruction from Sewell's father was relevant because there was no case for vicarious liability for his actions. Finally, Lord Burrows relied on the fact that the claimant was with Sewell, not because he was an elder, but because he was a close friend to whom she was offering emotional support. The last point is perhaps difficult to reconcile with the finding at first instance that the claimant was only friends with Sewell at the time of the rape because of the requirements and instructions of the congregation.
This judgement, along with the two in 2020, delivers the clear message that vicarious liability remains applicable only in tightly drawn circumstances. The observation that the underlying policy justification should not colour the identification and application of the criteria for establishing vicarious liability, should help to prune the variety of considerations which had been creeping into decisions on vicarious liability. The "sufficiently closely connected test" has long been difficult to understand and to apply but this decision will make it easier to identify the relevant factors when deciding whether it has been met.