When deciding whether an organisation is vicariously liable for something an employee did or did not do, the Supreme Court has confirmed in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB, that the act must be closely connected with acts that the employee is authorised to do.
Given that premise, the court concluded that the church was not liable for a rape by one of their employees.
Basic facts
After they started attending services of the Barry Congregation of the Jehovah’s Witnesses in 1984, Mr and Mrs B became close friends with the Sewell family – Mark (a church elder), Mary and their children. Towards the end of 1989, Mark Sewell began flirting with Mrs B; hugging her, holding hands and kissing her. At one point, he even asked her to run away with him. Mrs B was so concerned about his behaviour that she spoke to his father, Tony, an elder who explained that Mark was depressed and needed her love and support.
On 30 April 1990, the two families went to a local pub for lunch where Mark and his wife argued. After returning to the Sewell’s house, Mrs Sewell asked Mrs B to go and talk to her husband who had retreated into a back room. During their conversation, however, he pushed her to the floor, held her down and raped her. He was subsequently convicted of the offence.
Mrs B started an action for damages of personal injury, including psychiatric harm, against the trustees of the Barry Congregation (among others), alleging that they were vicariously liable for the rape.
Decision of lower courts
The trial judge accepted Mrs B’s evidence that if Mark Sewell had not been an elder, and his father had not instructed her to continue her friendship with him, she would have ended it at that point. He found that the trustees were vicariously liable for the rape and the Court of Appeal agreed. The trustees appealed to the Supreme Court.
Supreme Court decision
Noting that step one of the two-step test for vicarious liability required Mrs B to show that the church’s relationship with Mark Sewell was “akin to employment”, the Supreme Court agreed it was. As an elder, Mark Sewell was working on behalf of the Jehovah’s Witness organisation and performing duties to further its aims and objectives.
However, it held that the test at stage two, which considers whether the wrongful conduct was so closely connected with acts that Mr Sewell was authorised to do, that it could be said to have been carried out by him in the course of his employment, was not satisfied.
Firstly, the rape was not committed while he was carrying out his activities as an elder. Secondly, the offence constituted an abuse of Mr Sewell’s friendship with Mrs B when she was trying to help him. Thirdly, it was unrealistic to suggest that Mr Sewell never took off his “metaphorical uniform” when dealing with members of the Barry Congregation.
Fourthly, although his role as an elder was a “but for” cause of Mrs B’s continued friendship when the offence occurred, this was not enough to satisfy the close connection test. Fifthly, the rape was not an objectively obvious progression from what had gone on before. Finally, the court held that other factors, such as the role played by Tony Sewell and the failure of the Jehovah’s Witness organisation to condemn Mark Sewell’s habit of kissing members of the congregation when welcoming them, were not relevant except as background.
It, therefore, allowed the appeal.
Comment
This type of case will always be fact specific. In this decision, the Supreme Court has helpfully restated the issues to be considered for the purposes of a vicarious liability claim.