Supreme Court rules again on boundaries of vicarious liability – applying the close connection test

In Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent), the Supreme Court had to consider whether the Watch Tower Bible and Tract Society of Pennsylvania (WTBTSP) was vicariously liable for the rape of a member of a Jehovah’s Witnesses congregation by a congregational elder. In concluding that it was not, the court has provided further clarification on the boundaries of vicarious liability, in particular the application of the “close connection” test. 

Background

Mark Sewall was an elder in the Barry Congregation of Jehovah’s Witnesses, as was his father. BXB and her husband were members of the congregation. They were also close friends of Mr Sewall and his wife, the four spending a significant amount of social time together.

Mr Sewall’s behaviour towards BXB began to become inappropriate, including flirting with her and kissing her. So concerned was BXB that she and Mrs Sewall spoke to Mr Sewall’s father about it. He told them that Mr Sewall was suffering from depression and asked that BXB and her husband provide him with love and support.

On the morning of 30 April 1990, the two couples had been engaged in door-to-door evangelism. Following an argument with his wife, Mr Sewall confided in BXB’s husband that he wanted a divorce. BXB’s husband reminded him that this was only permitted within the Jehovah’s Witnesses’ community on the grounds of adultery. Mr Sewall’s response was that he would convince his wife that the ground was made out.

Later that day, the couples went to Mr Sewall’s home. At one point, Mr Sewall left the group and went to back room. Mrs Sewall asked BXB if she could “talk some sense into him”. BXB entered the back room in the hope that she could persuade Mr Sewall to speak to the other elders about his depression. It was there that Mr Sewall forced her to the floor and raped her.

Some years later, BXB sued both the Trustees of the Barry Congregation of Jehovah’s Witnesses and the WTBTSP. The latter had agreed to indemnify the former in respect of any judgment against them and, at the relevant time, WTBTSP’s British branch appointed elders in the church. In light of that, the Supreme Court concluded that WTBTSP was the appropriate defendant for the purposes of vicarious liability.

It was found that stage 1 of the test for vicarious liability (the relationship test) was satisfied, but stage 2 (the close connection test) was not. In the circumstances, WTBTSP was not vicariously liable for Mr Sewall’s rape of BXB and the claim failed, despite having succeeded at the original trial and in the Court of Appeal.

The law

The principle of vicarious liability makes organisations liable for the wrongful acts of third parties when certain conditions are satisfied. Those organisations might also be directly liable to the claimant, but that is quite distinct from vicarious liability.

Most cases involve the negligent acts of employees, their employers being held “vicariously liable” for the employee’s negligence when they are acting in the course of their employment. Why should this be so? The principle underlying policy justification is that an enterprise which takes the benefit of activities carried on by a person integrated into its organisation should also bear the cost of harm wrongfully caused by that person in the course of those activities.

Beginning with Lister v Hesley Hall Ltd [2002] 1 AC 215, the courts have extended the ambit of vicarious liability well beyond the traditional context, divining a more abstract and flexible approach capable of capturing quasi-employment relationships and intentional torts/criminal acts which fall well outside the original notion of acts in the course of employment, whilst remaining true to the underlying policy justification.

What seemed like an ever-expanding net was, however, curtailed by two relatively recent judgments of the Supreme Court, handed down on the same day: the cases of Various Claimants v Barclays Bank plc [2020] UKSC 13 (“Barclays”) and Various Claimants v Wm Morrison Supermarkets Ltd plc [2020] UKSC 12 (“Morrison”).

A two-stage analysis is required:

• The relationship test: is the relationship between the wrongdoer and the defendant an employment relationship, or sufficiently akin to employment?         
• The close connection test: is the wrongful act so closely connected with the acts the wrongdoer is authorised to do that it can fairly and properly be regarded as done by the wrongdoer while acting in the course of their employment (or quasi-employment)?

Only if the court concludes that both tests are satisfied will vicarious liability be established. Unsurprisingly, this requires a very close examination of the facts of each case and, once determined, careful application of the legal principles.

Barclays focussed on the nature of the relationship between the wrongdoer and the defendant. Morrison focussed on the close connection test. In both cases, the claims failed.

The judgment

The Supreme Court unanimously allowed the appeal. Whilst the relationship between Mr Sewall and the defendant was found to be sufficiently akin to employment, the act itself was not so closely connected to the acts he was authorised to do to render the defendant vicariously liable.

In terms of the relationship, the court noted the hierarchical structure of the organisation, the fact that, as an elder, Mr Sewall performed duties which were in furtherance of, and integral to, the aims and objectives of the organisation and that he carried out work on behalf of them and assigned to him by them. It was sufficiently akin to an employment relationship.

When it came to the close connection test, however, the Court of Appeal were found to have made a number of errors. The early relationship between Mr Sewall and BXB, the role of Mr Sewall’s father and the fact that the two couples had been engaged together in door-to-door evangelism on the morning of the rape were irrelevant, background, factors. The test applied by Males LJ in the Court of Appeal was incorrect. The question was not whether the act was sufficiently closely connected with Mr Sewall’s status as an elder, but whether it was sufficiently closely connected with the acts that he was authorised to do. There was also a misapplication of the “but for” test. Whilst it was true that Mr Sewall’s role as an elder was a “but for” cause of BXB ultimately being in the back room with him, that causation test was insufficient to satisfy the close connection test.

Comment

The firm rejection of vicarious liability in this case might be considered surprising if one focusses on why BXB came to be in the back room with Mr Sewall. She was there, at least in part, because she had been encouraged to continue offering him support, despite her concerns about his behaviour, by another elder and in the context of a relationship which began in, and was nurtured by, the organisation. However, that would be to apply the wrong test. The focus must be on whether the act was closely connected to the acts Mr Sewall was authorised to perform, not on his status as an elder and his relationship with the claimant as a consequence.

In rejecting the conclusions of the Court of Appeal, the Supreme Court has provided further helpful guidance on the boundaries of vicarious liability. This follows not only the Supreme Court’s dismissal of vicarious liability in Barclays and Morrison, but also the Court of Appeal’s rejection of vicarious liability in Chell v Tarmac Cement and Lime Limited [2022] EWCA Civ 7, a case involving a workplace prank in which CMS acted for the defendant.

Further reading: Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent) [2023] UKSC 15