The scope of vicarious liability

Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15 – 9 May 2023

The claimant was a member of the defendant’s church. She and her husband had formed a close friendship with an elder in the church. During a visit to the elder’s house in 1990, the elder raped the claimant while they were together in a room. She reported the crime to the police in 2014 and her assailant was convicted and imprisoned. She then brought a claim against the defendant alleging that it was vicariously liable for the elder’s attack on her. At first instance, the trial judge held that the defendant was vicariously liable and that decision was upheld by the Court of Appeal. The defendant then appealed to the Supreme Court.

Lord Burrows gave the unanimous judgment of the court. He considered the law of vicarious liability and its development from cases such as Lister v Hesley Hall Ltd [2001] UKHL 22. There was a two-stage test. Stage one asked the question as to whether the relationship between the defendant and the tortfeasor was one of employment or one that was ‘akin to employment’. Stage two asked whether the wrongful conduct was so closely connected with acts the employee was authorised to do that, for the purpose of the liability of the defendant, the wrongful conduct might fairly and properly be regarded as done by the employee while acting in the course of the defendant’s business or the employee’s employment or quasi-employment. It was also important to consider the policy reasons for the imposition of vicarious liability.   

Lord Burrows referred to recent decisions of the Supreme Court which had restricted the scope of vicarious liability. Various Claimants v Barclays Bank plc [2020] UKSC 13 concerned the arrangements made by a bank for a doctor to carry out pre-employment medical examinations on job applicants, which that doctor used to abuse those applicants. The test in stage one was not met. In Various Claimants v WM Morrison Supermarkets plc [2020] UKSC 12, the defendant’s employee unlawfully copied individual data and uploaded it on to a publicly accessible website. In that case, the stage two test was not met.

Here, the stage one test was met. Although the tortfeasor was unpaid as an elder and he was not entitled to claim expenses, economic dependence was not a necessary feature of a relationship being akin to employment. The tortfeasor was carrying out work on behalf of, and assigned to him by the defendant in furtherance of, and integral to, the defendant’s aims and objectives.

Lord Burrows then turned to stage two. On this issue, the trial judge had said that the elder’s position in the defendant’s church was an important part of the reason why the claimant and her husband started to associate and remain friends with him. The defendant had significantly increased the risk that the elder would sexually abuse the claimant, thus creating the conditions in which the two might be alone together. The rape took place in circumstances closely connected to the carrying out by the elder and the claimant of religious duties. One of the reasons for the rape was the elder’s belief that an act of adultery was necessary to provide scriptural grounds for him to divorce his own wife. Some of these factors were relied upon by the Court of Appeal.

Lord Burrows said that the factors listed above should not have been regarded as important. The development of a friendship should have had no relevance to vicarious liability except as merely background. In the view of the court, and for the following reasons, the stage two test for vicarious liability was not met.

First, the rape was not committed while the elder was carrying out any activities as an elder on behalf of the defendant’s church.

Second, in contrast to many child sexual abuse cases, the elder was not exercising control over the claimant because of his position. The driving force behind the two being together in a room at the time of the rape was their close personal friendship.

Third, it could not seriously be suggested that there would be vicarious liability if, for example, the elder had been driving the claimant and her family in his own car to the airport for their holidays and they had been injured in an accident caused by his negligence. The elder was not wearing his ‘metaphorical uniform’ at the time the tort was committed.

Fourth, while it was true that the claimant’s friendship with the elder would not have happened but for his position in the church, that ‘but for’ causation test was insufficient to satisfy the close connection test.

Fifth, Lord Burrows could not accept that what happened in this case was equivalent to the gradual grooming of a child for sexual gratification by a person in authority over that child. This was a shocking one-off attack.

Sixth, there was no relevance, for example and save as background, in the failure of the church to condemn inappropriate behaviour. That belonged to the tort of negligence.

As a final check, consideration of policy confirmed that there was no convincing justification for extending vicarious liability beyond its principled boundaries.

The defendant’s appeal would be granted.

This is another restriction on the scope of vicarious liability, which since Lister has enabled so many victims of abuse to obtain compensation from their assailants’ employers. The Supreme Court was careful to distinguish this case from that of children abused within institutions. It might be said that the decision is confined to its own particular facts, but regrettably in many of these cases, the abuser will often take the victim ‘off the premises’ to abuse them and will do so in what is presented as a social situation or part of a ‘friendship’. This creates the opportunity for defendants to argue that they are not liable for all or some of the abuse.

Malcolm Johnson is legal director and head of child abuse compensation claims at Lime Solicitors, London