Barry Congregation of Jehovah's Witnesses v BXB

Vicarious liability has two stages. The relationship must be capable of giving rise to liability, and the tort must be sufficiently closely connected with it. A non-contractual relationship may satisfy the first stage where an individual performs integral activities for an organisation’s benefit and the organisation creates the relevant risk by assigning those activities. In sexual abuse cases, the close-connection inquiry is tailored to the wrong. It considers authority, power, dependency and opportunities for physical proximity. The approach applies to adult victims, although their age, independence and ability to withdraw remain relevant facts. Abuse occurring during a social encounter, rather than during an assigned religious duty, may still be sufficiently connected where the position of authority created or materially enhanced the risk.

The respondent, an adult member of a Jehovah’s Witnesses congregation, was raped by Mark Sewell, an elder. Chamberlain J held the congregation’s trustees vicariously liable, extended time for the claim and awarded damages for psychiatric injury. The trustees appealed, alleging errors at both stages of the vicarious liability test. They also sought permission to argue that the judge had determined non-justiciable religious matters. The appeal concerned whether the relationship between an elder and the congregation was capable of giving rise to vicarious liability and whether the rape was sufficiently connected with Sewell’s status and authority as an elder.

The appeal was from the decision reported at [2020] EWHC 156 (QB).

The appeal was dismissed unanimously. The Court of Appeal upheld the finding that the trustees were vicariously liable for the rape.

1. Religious justiciability. The court applied the distinction in Shergill v Khaira [2015] AC 359. Courts do not determine the truth of religious beliefs or the validity of religious rites, but may determine objectively ascertainable religious matters where necessary to decide disputed legal rights. The proposed ground was misconceived and permission was refused.
2. Stage 1. The two-stage test identified in Catholic Child Welfare Society [2012] UKSC 56 was applied. The question was whether the relationship was sufficiently akin to employment and capable of giving rise to liability. The court accepted the formulation in Cox v Ministry of Justice [2016] UKSC 10, while recognising that the inquiry requires examination of the actual organisational relationship. Elders were spiritual leaders, integral to the congregation’s operation, subject to its hierarchical structure and rules, and the principal conduit for disseminating its teachings. They were not conducting an independent business. The organisation’s conferral of power and authority over publishers created a relevant risk of abuse.
3. Stage 2. The close-connection test is more tailored in sexual abuse cases, as explained in Christian Brothers and Various Claimants v Wm Morrison Supermarkets Plc [2020] UKSC 12. It focuses particularly on authority over the victim and the opportunity for physical proximity. That approach applies to adult victims as well as children, although the adult’s age, independence and ability to withdraw are relevant factual considerations.
4. The judge was entitled to find that Sewell’s status, the instruction from a senior elder that Mrs B continue to support him, the congregation’s expectations of obedience, and the resulting opportunity for continued close contact created a strong causative link. The rape occurred during a social encounter and not while Sewell was performing a religious duty, but it was nevertheless sufficiently connected with the authority conferred by his status as an elder. The findings were supported by the evidence and disclosed no error of law.

1. Court of Appeal (Civil Division) — dismissed the appeal.
2. Queen’s Bench Division — Chamberlain J held the trustees vicariously liable for the rape, extended time for the claim and awarded £62,000 for psychiatric injury: [2020] EWHC 156 (QB).