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

Vicarious liability requires two conditions. The relationship between the defendant and tortfeasor must be employment or akin to employment. The tort must also be so closely connected with authorised acts that it can fairly and properly be regarded as committed in the course of that employment or quasi-employment.

A causal link or the mere opportunity afforded by status is insufficient. The same tests govern sexual abuse and other torts. Policy ordinarily informs those tests rather than operating as a separate basis for liability. It may provide a final check in a difficult case.

An elder of a Jehovah’s Witness congregation raped an adult member with whom he and his family had developed a close friendship. She claimed damages from the organisation and the congregation’s trustees on the basis of vicarious liability.

The High Court upheld the claim: [2020] EWHC 156 (QB). The Court of Appeal unanimously dismissed the trustees’ appeal: [2021] EWCA Civ 356. Both courts considered the elder’s relationship with the organisation capable of giving rise to vicarious liability and found a sufficiently close connection between that relationship and the rape.

The Supreme Court considered whether either stage of the modern two-stage inquiry was satisfied, and particularly whether the rape was closely connected with acts which the elder was authorised to perform.

1. Appeal allowed unanimously. Lord Burrows, with whom Lord Reed, Lord Hodge, Lord Briggs and Lord Stephens agreed, held that the relationship between the organisation and the elder was akin to employment, but that the required close connection between his authorised activities and the rape was absent.

2. Vicarious liability has two stages. Stage 1 asks whether the relationship was employment or akin to employment. Stage 2 asks whether the tort was so closely connected with authorised acts that it can fairly and properly be regarded as committed in the course of the tortfeasor’s employment or quasi-employment. Both stages must be satisfied. Mere “but for” causation does not satisfy stage 2.

3. Stage 1 was satisfied. The elder carried out work assigned by and on behalf of the organisation. His duties were integral to its aims. He occupied an appointed role within a hierarchy and was subject to a removal process and organisational rules. Lack of remuneration was relevant but not decisive. The lower courts had, however, wrongly treated the organisation’s creation of the risk of rape as a criterion at this stage. That consideration concerned underlying policy rather than whether the relationship resembled employment.

4. Stage 2 was not satisfied. The rape occurred in the elder’s home while he was performing no religious duty, pastoral work, evangelising or other authorised activity. He was not exercising control over the claimant by virtue of his office. Their close personal friendship, rather than his assigned role, was the driving force behind their presence together. His status was a factual cause of the continuing friendship, but that was insufficient. The attack was neither an objectively obvious progression from earlier conduct nor equivalent to the grooming of a child by a person exercising authority.

5. The same stages and tests apply in sexual abuse cases as in other vicarious liability cases. The modern tests already incorporate the necessary development of the law. Legal principle will ordinarily decide the case without renewed examination of policy. In a difficult case, enterprise-risk policy may provide a final check. Here it confirmed that the organisation should not bear the cost or risk of the rape; its deeper pockets supplied no justification for extending liability beyond principled boundaries.

1. United Kingdom Supreme Court: Allowed the appeal unanimously: [2023] UKSC 15. Stage 1 was satisfied, but the rape failed the close connection test at stage 2.

2. Court of Appeal: Unanimously dismissed the trustees’ appeal and upheld vicarious liability: [2021] EWCA Civ 356.

3. High Court: Chamberlain J held the defendants vicariously liable and awarded general damages: [2020] EWHC 156 (QB). He also permitted the proceedings to continue under section 33 of the Limitation Act 1980.