Trustees of the Barry Congregation of Jehovah's Witnesses v BXB

The Supreme Court reviewed the modern law of vicarious liability and applied the two-stage test: (1) whether the relationship between the defendant and the tortfeasor was employment or akin to employment, and (2) whether the tort was so closely connected with acts the tortfeasor was authorised to do that it could fairly and properly be regarded as done in the course of that quasi-employment. The court held that the relationship between an elder and the Jehovah’s Witness organisation was akin to employment (stage 1) but that the requisite close connection (stage 2) was not established in respect of the rape. The court therefore allowed the appeal.

Key legal points: the stage 1 inquiry requires factual analysis of whether the relationship is akin to employment (features such as hierarchy, appointment and integration into the organisation are relevant). The stage 2 close connection test is the Dubai Aluminium/Lister formulation (as clarified in Morrison): the wrongful act must be so closely connected with authorised acts that it can fairly be regarded as done in the course of employment or quasi-employment; mere "but for" causation, friendships or background facts are insufficient. The court emphasised that Barclays Bank and Morrison constrain expansion of vicarious liability and that policy (enterprise risk) is a final check but does not justify extending liability beyond the principled tests.

Background and parties:

• The claimant (BXB) alleged that she had been raped in 1990 by an elder of the Barry Congregation of Jehovah’s Witnesses (Mark Sewell) and sued the Trustees of the Barry Congregation and the Watch Tower Bible and Tract Society of Pennsylvania for damages, asserting vicarious liability for the tort of trespass and a negligence claim against the elders for failures of investigation.
• Procedural history: the claim succeeded at first instance before Chamberlain J ([2020] EWHC 156 (QB)); the Court of Appeal dismissed the Trustees’ appeal ([2021] EWCA Civ 356); the Trustees appealed to the Supreme Court.

Nature of the claim and issues:

• Relief sought: damages for personal injury including psychiatric harm resulting from rape, and damages in negligence for alleged failures by elders to investigate and take steps.
• Principal issues: (i) whether the relationship between the Jehovah’s Witness organisation and the elder was akin to employment (stage 1); (ii) whether the rape was sufficiently closely connected with acts authorised by the elder so as to render the organisation vicariously liable (stage 2); (iii) limitation issues (the judge had admitted the claim under section 33 of the Limitation Act 1980 at first instance).

Court’s reasoning:

• On stage 1 the Supreme Court agreed that the relationship was akin to employment: elders performed duties integral to the organisation, were appointed and removable, and fitted into a hierarchical structure, so the early factual findings and the reasoning of the lower courts on stage 1 were correct.
• On stage 2 the court undertook a fresh application of the close connection test as framed in Dubai Aluminium and confirmed in Morrison. The court concluded that the rape was not sufficiently connected with acts the elder was authorised to do. The decisive considerations included that the rape occurred at the elder’s home when he was not engaged in any ecclesiastical duty, that the primary reason for the claimant’s presence was a close personal friendship rather than the elder’s exercise of authority, that "but for" causation was insufficient, that the facts did not amount to grooming analogous to institutional child abuse, and that policy considerations (enterprise risk) did not justify extending vicarious liability here.
• The court therefore allowed the appeal and set aside the orders finding vicarious liability.

Wider context:

• The judgment reiterates the two-stage approach and the limits on expanding vicarious liability beyond established principled boundaries, emphasising the continuing relevance of Barclays Bank and Morrison while recognising that sexual abuse cases are governed by the same tests applied to other torts.

Appeal allowed. The Supreme Court held that although the relationship between the elder and the Jehovah’s Witness organisation was akin to employment (stage 1), the rape was not so closely connected with acts the elder was authorised to do that it could fairly and properly be regarded as done in the course of his quasi-employment (stage 2). Consequently, vicarious liability did not arise and the decision below was reversed.

First instance: Chamberlain J, [2020] EWHC 156 (QB) (claim allowed on vicarious liability and limitation admitted under section 33). Court of Appeal: appeal dismissed, [2021] EWCA Civ 356. Appeal to the Supreme Court allowed, [2023] UKSC 15.