BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor (Rev 1)

A religious organisation may be vicariously liable for sexual abuse by an elder where the relationship is integral to its activities and the organisation created or materially enhanced the risk of abuse. The relevant connection is assessed broadly. Abuse need not occur while the tortfeasor is performing a specific religious duty if his position, authority and assigned activities materially enabled the abuse.

Courts must not determine the truth of religious doctrine. They may, and where necessary must, determine objectively ascertainable religious rules when resolving civil rights. The court left undecided whether a religious organisation owes a complainant a direct duty of care in conducting an internal investigation into alleged sexual assault.

The claimant alleged that an elder of a Jehovah’s Witnesses congregation raped her in 1990. She claimed that the defendants were vicariously liable for the rape and were directly liable in negligence for the manner in which elders investigated her subsequent complaint.

The claims were issued in 2017 and were prima facie statute-barred. The central issues were whether time should be extended under section 33 of the Limitation Act 1980, whether the relationship and connection tests for vicarious liability were satisfied, whether an investigation duty of care existed, and what psychiatric injury and damages were attributable to the rape.

1. Limitation. Applying section 33 of the Limitation Act 1980, it was equitable to extend time for both causes of action. The claimant gave an accepted explanation for the delay, including humiliation, shame, psychiatric injury and the belief that she would not be believed. The delay did not cause significant forensic prejudice. Each cause of action required separate consideration.

2. Justiciability. Under Shergill v Khaira [2015] AC 359, courts do not determine the truth or validity of religious doctrine. They may determine objectively ascertainable religious matters where necessary to decide civil rights. That principle does not confer a special exemption from the general law on religious organisations.

3. Vicarious liability. The relationship between the defendants and the elder was capable of giving rise to vicarious liability. Elders were integral to the congregation’s activities, disseminated teachings, exercised authority and were placed in positions creating risks of abuse. The rape was sufficiently closely connected to that position. Relevant features included the role of the elder in establishing and maintaining the relationship, the instruction from another elder to continue acting as his confidante, the religious activity preceding the rape, the approved venue, and the abuser’s belief that his status entitled him to exercise power over the claimant.

4. Investigation claim. It was unnecessary to decide whether the defendants owed a direct duty of care in conducting the investigation. The court observed that foreseeability and proximity could be established, but that the fair, just and reasonable stage raised difficult policy questions concerning religious autonomy, investigatory procedures and the protection of congregation members.

5. Causation and damages. The rape materially contributed to the claimant’s recurrent depressive disorder and PTSD. The psychiatric conditions were assessed as one total psychiatric injury. General damages were £62,000. Claims for alleged loss of earnings, a Blamire v South Cumbria Health Authority [1993] PIQR Q1 award and a Smith v Manchester [1974] EWCA Civ 6 award failed.

6. There was judgment for the claimant in an amount to be assessed, subject to any remaining disputed issues.