Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15 (26 April 2023)

A woman was raped by an elder of the Jehovah's Witnesses. The Supreme Court considered whether the organisation was vicariously liable. While the relationship between elder and organisation was akin to employment (stage 1 satisfied), the rape was not sufficiently connected to his authorised activities as elder (stage 2 failed). Appeal allowed.

Facts

The respondent (BXB) was a member of the Barry Congregation of Jehovah’s Witnesses. She developed a close friendship with Mark Sewell, an elder, and his wife. In April 1990, following a social gathering at Sewell’s home, BXB went to speak with him in a back room where he violently raped her. Sewell was subsequently convicted criminally. BXB brought a civil claim against the Trustees of the Barry Congregation alleging vicarious liability for the rape.

Background Relationship

The families had become close friends partly due to Sewell’s position as an elder. When Sewell displayed concerning behaviour including depression and inappropriate conduct, another elder (Tony Sewell, his father) encouraged continued support. BXB gave evidence that but for Sewell’s status as elder, the friendship would have ended before the rape occurred.

Issues

The central issue was whether the Jehovah’s Witness organisation was vicariously liable for the rape committed by one of its elders. This required examination of both stages of the vicarious liability test:

• Stage 1: Was the relationship between the organisation and the elder akin to employment?
• Stage 2: Was the wrongful conduct sufficiently closely connected with the tortfeasor’s authorised activities?

Judgment

Stage 1: Relationship Akin to Employment

The Supreme Court unanimously held that Stage 1 was satisfied. Lord Burrows, delivering the sole judgment, found that the relationship between an elder and the Jehovah’s Witness organisation was indeed akin to employment. Key features included: work carried out on behalf of and assigned by the organisation; duties integral to the organisation’s aims; an appointments and removal process for elders; and a hierarchical structure.

The important features here rendering the relationship akin to employment were as follows: that as an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organisation; that he was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation; that there was an appointments process to be made an elder and a process by which a person could be removed as an elder; and that there was a hierarchical structure into which the role of an elder fitted.

Stage 2: Close Connection Test

The Court held that Stage 2 was not satisfied. Lord Burrows articulated the correct test as:

whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment.

The rape failed this test because:

• The rape was not committed while Sewell was carrying out any activities as an elder
• He was at his own home, not engaged in any elder duties
• Sewell was not exercising control over BXB because of his position as elder at the time
• The driving force behind their presence together was their close personal friendship, not his role as elder
• But-for causation alone is insufficient to satisfy the close connection test
• This was not analogous to gradual grooming by someone in authority over a child

The rape was not so closely connected with acts that Mark Sewell was authorised to do that it can fairly and properly be regarded as committed by him while acting in the course of his quasi-employment as an elder.

Implications

This judgment provides important clarification of vicarious liability law following earlier expansions. The Court confirmed that:

• The two-stage test applies uniformly to all vicarious liability cases including sexual abuse
• The distinction between employees and independent contractors remains crucial
• Policy considerations underlying vicarious liability should not be conflated with the criteria for its application
• But-for causation is necessary but not sufficient for the close connection test
• The test is whether the tort can fairly be regarded as committed in the course of employment or quasi-employment, not merely whether the relationship facilitated the tort

The decision represents a consolidation and clarification of vicarious liability principles following the cases of Barclays Bank and Morrison (both 2020), emphasising principled boundaries to the doctrine’s expansion.

Verdict: Appeal allowed. The Trustees of the Barry Congregation of Jehovah’s Witnesses were not vicariously liable for the rape committed by Mark Sewell. While Stage 1 (relationship akin to employment) was satisfied, Stage 2 (close connection test) was not satisfied.

Source: Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15 (26 April 2023)