Supreme Court retreats from seemingly extended principles of vicarious liability

Following the Court of Appeal’s decision in March 2021 which stood as a further example of a faith-based establishment being caught by the extended principle of vicarious liability, the Supreme Court has clarified the position by allowing the defendant’s appeal.

The Court has confirmed that the Trustees of the Barry Congregation of Jehovah's Witnesses (the congregation) is not vicariously liable for the actions of one of its elders.

Background to the appeal

Both before the High Court and the Court of Appeal, the congregation had been held vicariously liable for an incident of rape committed by one its elders (MS) against an adult member of the congregation (BXB). This was on the basis that MS’ position as an elder was integral to the “business” of the congregation and that there was a strong causative link between MS’ wrong-doing and his position and conduct as an elder. As such, the two-stage test to establish vicarious liability was satisfied and liability was found to attach.

By way of background, MS was known to BXB through her husband’s work and their friendship continued through their involvement with the congregation. On 30 April 1990, BXB, her husband, MS and his wife were involved in door-to-door evangelising. There followed a pub lunch were MS drank heavily and argued with his wife. The families returned to MS’ home where he raped BXB.

Supreme Court’s decision

In a unanimous decision, led by Lord Burrows, the Supreme Court decided that the congregation is not vicariously liable for the rape committed by MS.

The Court redefined the well-established two-stage test, both stages of which must be satisfied in order to establish vicarious liability. Stage one considers whether the relationship between the defendant and tortfeasor is one of employment or akin to employment. Stage two is the ‘close connection’ test and considers whether the wrongful conduct was so closely connected with the acts that the tortfeasor was authorised to do, so as to make it fairly and properly regarded as being done while acting in the course of their employment or quasi employment.

Whilst the Supreme Court agreed with the lower courts that the stage one test was satisfied given that MS’ relationship with the congregation was one akin to employment, the Court was not satisfied with the decision reached in relation to stage two. They found that the lower courts had taken irrelevant factors into account when analysing whether there was the requisite close connection, including the role of MS’ father in encouraging BXB to support MS and the failure of the congregation to condemn inappropriate behaviour displayed by MS against other members.

The tortious conduct which formed the subject matter of this claim could not, in the Supreme Court’s judgment, be fairly and properly regarded as being done in the course of MS’ position as an elder. Of particular relevance was the fact that the rape was not committed while MS was carrying out activities as an elder, rather MS was abusing his position as a close friend of BXB in “a shocking one-off attack”. Contrary to child sexual abuse cases, MS was not exercising control over BXB in his position as an elder. MS’ role in the congregation as the reason for BXB’s continued friendship with him (and therefore the opportunity for the rape to be committed) also could not form a basis on which to satisfy the close connection test. Crucially, the Court found that MS removed his “metaphorical uniform” even when dealing with members of the congregation, including BXB, when not engaged in core church activities – he was not always on duty.

The Supreme Court confirmed that in cases of sexual abuse, the same two-stage test applies as in other cases when considering vicarious liability. Finally, it may also be necessary to stand back and consider whether the outcome is consistent with the underlying policy justification for vicarious liability. Ultimately, just because an organisation has “deeper pockets” than the individual, does not merit an extension of vicarious liability beyond its principled boundaries.

Comment

This is a welcome decision for defendants providing a consolidated definition of the tests for vicarious liability, but making clear that the second stage should be applied in a restricted way. This should limit the range of cases where vicarious liability is established. Further, it confirms that there is no ‘special regime’ for abuse cases.

Previous judgments have suggested that the law on vicarious liability has been ‘on the move’, but this Supreme Court decision suggests otherwise. With the stage one test firmly limited in the Barclays Bank Plc v Various Claimants [2020] decision, so now is stage two of the test.

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