Court reaffirms principles of vicarious liability and their applicability to faith-based establishments

Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [15.03.21]

In a unanimous decision, the Court of Appeal has reaffirmed the extended principles of vicarious liability as set out in Cox v Ministry of Justice [2016] (Cox) and Mohamud v WM Morrison Supermarkets plc [2016] (Mohamud), despite the lack of a traditional employee/employer relationship.

Background

The claimant (BXB) became a Jehovah's Witness in 1986. Mark Sewell was an ‘elder’, a spiritual leader, of the Jehovah’s Witness congregation in Barry, Wales. On 30 April 1990, Sewell raped BXB in his house. She did not report the attack until some years later when she discovered that Sewell had been sexually abusing a young girl. In the presence of Sewell, and his wife, she was questioned by a “judicial committee” of elders from another congregation, who found the allegation “not proven”. However, 13 years later in 2014, Sewell was convicted and sentenced to 14 years in prison for the rape of BXB and the indecent assault of two girls.

BXB suffered psychiatric injury including Post Traumatic Stress Disorder (PTSD) and brought a civil claim against the worldwide governing body of Jehovah’s Witnesses (D1) and the local congregation (D2) alleging that they were vicariously liable for Sewell’s abusive acts.

Mr Justice Chamberlain found that the defendants were vicariously liable for the indecent assault, the two stage test having being satisfied.

An appeal was brought by D2 on the basis that Mr Justice Chamberlain had failed to correctly apply the two stage test to establish vicarious liability. The grounds of appeal were:

  1. In his application of stage 1 of the test for vicarious liability the judge erred by his conclusion that the activities undertaken by Mark Sewell were an integral part of the “business” activities carried on by the defendants and that the commission of the rape was a risk created by the defendants assigning those activities to Mark Sewell.
  2. In his application of stage 2 of the test for vicarious liability, the judge erred by his conclusion that the rape was sufficiently closely connected to Mark Sewell’s position as an elder to justify the imposition of vicarious liability.

Court of Appeal decision

Lady Justice Nicola Davies held that the position of an ‘elder’ was integral to the “business” of a congregation of Jehovah’s Witnesses; elders were integral to the organisation, and the nature of their role was directly controlled by it.

Further, in assigning the power and authority embodied in the role to Sewell, the defendants created a risk that he would abuse that power and authority. The Jehovah’s Witness organisation makes rules for all aspects of its members lives, and sets up its leaders as moral and spiritual ideals. In doing so, it instills those leaders with power and authority which extend beyond the confines of religious activities. Members are directed to be obedient and submissive towards elders such that, it was less likely that the claimant, or others would question [Sewell’s] motives and emboldening him to think that he could act as he wished with little fear of adverse consequences”.

Further, had the claimant felt able to end the friendship with Sewell, he would not have been able to continue his close proximity to her and she would not have felt compelled to tolerate his increasingly inappropriate behaviour simply because he was an elder. There was therefore a “strong causative link” as referred to by Lord Phillips in Catholic Child Welfare Society [2013]. This also reflects the observations made by Lord Phillips in Catholic Child Welfare Society and others v Various Claimants and the Institute of Brothers of the Christian Schools and others [2012] in considering cases of sexual abuse the fact that the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them.

The close connection test was satisfied. Sewell’s position as an elder and authority within the organisation and the power which it engendered, made it just and reasonable for the defendants to be held vicariously liable. Accordingly, the appeal was dismissed.

Comment

This is a further example of faith-based establishments being caught by the extended principle of vicarious liability, and reaffirms the previous position as set out in Cox and Mohamud.

The analysis of the test for vicarious liability in this decision is reminiscent of Mr Justice Globe’s comments in his judgment in A v Trustees of the Watchtower Bible and Tract Society [2015], which also involved a congregation of Jehovah's Witnesses, where he stated in his judgment that "the high level of control over all aspects of the life of a Jehovah's Witness is arguably a closer relationship than that to be found in an employer/employee relationship."