01 June 2023

In recent times, the law of vicarious liability could be described as being in turbulent waters. However, the recent judgment from the UK Supreme Court in the case of Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB, provides a thorough analysis of the law and a re-affirmation of the two-stage test for establishing vicarious liability.

The case can be read here.

The circumstances of the case relate to a female (Mrs B) and male, Mark Sewell. Mr and Mrs B attended religious services of the Barry Congregation of Jehovah’s Witnesses, where they met Mark and Mary Sewell. Mark Sewell was a ministerial servant, later becoming an elder, holding congregational responsibilities. His father, Tony Sewell, was also an elder. Mr and Mrs B became family friends with Mark and Mary Sewell.

Mark Sewell developed signs of depression and Mr and Mrs B approached his father out of concern. Tony Sewell advised that in this time he needed love and support from his friends. Mr and Mrs B endeavoured to provide the support. After a morning of door-to-door evangelising, Mr and Mrs B returned to the Sewell’s house after they had an argument. Mrs B was asked to speak to Mark Sewell, and when she attempted to speak to him about his depression and turning to an elder, he held her to the ground and raped her. A civil action was raised for damages against the Trustees of the Barry Congregation and the Watch Tower and Bible Tract Society of Pennsylvania.

At first instance, vicarious liability was established. This decision was then appealed. The appeal was dismissed, but vicarious liability was discussed in greater depth with Davies LJ commenting on the nature of the relationship between the teaching brothers and the Institute and the hierarchy structure. She commented on the rules that dictated the conduct of the teachers, and the structure exercising control over the members.

The case was then heard at the Supreme Court. The judgment confirms the two-stage test that requires to be satisfied for the establishment of vicarious liability.

Firstly, the Supreme Court made plain that the court required to consider whether the role Mark Sewell held was akin to that of an employee. A number of factors were considered which may assist in categorising a relationship of this kind.

• Payment
• Benefits – such as food or accommodation
• Carrying out work on behalf of an organisation
• Performing duties integral to the organisation and their aims and objectives
• An appointment process, and a removal process for the position.

Standing the factual scenario, the Supreme Court agreed that this stage of the test had been satisfied and, in this, it agreed with the analysis of the lower courts.

Secondly, in terms of the “close connection” test, this required an analysis of whether the conduct was so closely connected with the acts that the tortfeasor was authorised to do, that it could fairly and properly be regarded as committed by him while acting in the course of the quasi-employment.

The Supreme Court held that the “close connection” test was not satisfied as the rape was not committed whilst he was on duty as an elder, but at his own home. At the time of the offence, Mark Sewell was not engaged in any religious activity. This differentiates the Barry case from prior cases involving sexual abuse of children, as nobody was in Mark Sewell’s care. It was due to his close friendship that Mrs B was able to provide emotional support to Mark Sewell, not due to the fact he was an elder.

The Supreme Court also addressed the issue of “taking off the metaphorical uniform”, highlighting that it was not realistic that, for every action of an elder, the Barry Congregation would be vicariously liable.

This outcome in Barry appears to be where a realistic line has been drawn. For many years following cases such as Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 10 and Cox v Ministry of Justice [2016] UKSC11, to Various Claimants v Wm Morrison Supermarkets plc [2020] UKSC 12 and Various Claimants v Barclays Bank plc [2020] UKSC 13, courts have grappled with the extent to which vicarious liability can extend.

There is a sense of proportionality about the final paragraph of the judgment. Lord Burrows, by way of a “final check”, considers the policy of enterprise liability or risk that underpin vicarious liability. He states that consideration of the policy confirms there to be no justification for the Appellant to bear the cost or risk of the rape committed by Mark Sewell. Having considered whether the Appellant should bear the cost because they have deeper pockets, it is stated “…that is not a justification for extending vicarious liability beyond its principled boundaries.”

This judgment will come as welcome news to insurers and employers alike as it appears to halt the extension and widening of vicarious liability and re-establishes the focus on the close connection test and the factors which the Court will take into account in determining whether a close connection existed, or not.

For more information, please contact:

Katherine Wade, Solicitor: kew@bto.co.uk / 0141 221 8012