BXB v Trustees of the Barry Congregation of Jehovah's Witnesses

Heard on 13 and 14 February 2023

Lord Burrows ( with whom Lord Reed, Lord Hodge, Lord Briggs and Lord Stephens agree):

Vicarious liability in tort is an unusual form of liability. This is because the vicariously liable defendant is held liable (and treated as a joint tortfeasor) not because it has itself committed a tort against the claimant but because a third party has committed a tort against the claimant. Vicarious liability has often been treated as imposing strict liability because it is not dependent on proving the fault of the defendant. But it differs from strict liability torts. They impose personal liability on a defendant irrespective of fault whereas vicarious liability is precisely not a personal liability. Vicarious liability therefore does not rest on the defendant having owed a duty, whether strict or of reasonable care, to the claimant. It was the third party (who I shall refer to as the tortfeasor) who owed that duty to the claimant.

Given the unusual nature of vicarious liability, it is perhaps not surprising that its precise rationale has proved contentious. However, until relatively recently, the parameters of the English law on vicarious liability were fairly well-settled. In general terms (and leaving aside special pockets of vicarious liability, such as that dealing with the driving of a car with the consent of, and for the purposes of, the owner, as in Ormrod v Crosville Motor Services Ltd [1953] 1 WLR 1120), an employer was vicariously liable for the torts of its employee, but not of an independent contractor, committed in the course of his or her employment. Being within the course of employment was often explained (using the test formulated by Sir John Salmond, The Law of Torts 1 ^st ed (1907) p 83) as covering not only a wrongful act authorised by the employer but also a wrongful and unauthorised mode of doing some act authorised by the employer.

As with other jurisdictions in the common law world, that relatively clear and well-settled picture of vicarious liability in English law has been redrawn and expanded — in this jurisdiction since 2001 — primarily to deal appropriately with the many claims for sexual abuse of children. There has also been pressure to reflect changes in the patterns of work relationships. These claims and changes have posed two types of problem for the established doctrine of vicarious liability. The first is that the type of relationship in question between the defendant and the tortfeasor may fall outside that of employer and employee. The second is that the torts in question in the sexual abuse cases are intentional torts that cannot easily be fitted within the idea that the tortfeasor's act is merely an unauthorised mode of doing some act authorised by the employer.

In English law, at the level of the highest court, the expansive redrawing of the boundaries first started in Lister v Hesley Hall Ltd (“Lister”) [2001] UKHL 22, [2002] 1 AC 215 and was continued or confirmed in cases, not all involving sexual abuse, such as Various Claimants v Catholic Child Welfare Society (“Christian Brothers”) [2012] UKSC 56, [2013] 2 AC 1; Cox v Ministry of Justice (“Cox”) [2016] UKSC 10, [2016] AC 660; Mohamud v Wm Morrison Supermarkets plc (“Mohamud”) [2016] UKSC 11, [2016] AC 677; and Armes v Nottinghamshire County Council (“Armes”) [2017] UKSC 60, [2018] AC 355. Alongside the redrawing of the boundaries, there has also been a clearer recognition that there are two stages of the inquiry into vicarious liability: stage 1 looks at the relationship between the defendant and the tortfeasor; and stage 2 looks at the connection between that relationship and the commission of the tort by the tortfeasor.

During the period 2001 to 2017, as Lord Phillips said in starting his analysis of the law in Christian Brothers, the law of vicarious liability was “on the move”: [2012] UKSC 56, [2013] 2 AC 1, para 19. Two decisions of this court, handed down on the same day in 2020, Various Claimants v Wm Morrison Supermarkets plc (“Morrison”) [2020] UKSC 12, [2020] AC 989 and Various Claimants v Barclays Bank plc (“Barclays Bank”) [2020] UKSC 13, [2020] AC 973 sought to clarify the boundaries of the newly expanded law of vicarious liability.

This court is now faced with examining the modern law on vicarious liability, as clarified in Barclays Bank and Morrison, in a case which involves the rape of a 29 year old married woman by an elder of the Jehovah's Witnesses.

In formulating this judgment, I have found great assistance from a number of academic writings. We were referred by counsel to, for example, an article and a blog by Paula Giliker: “Can the Supreme Court halt the ongoing expansion of vicarious liability? Barclays and Morrison in the UK Supreme Court” (2021) 37 Professional Negligence 55–72; and “‘Tailoring’ the Close Connection Test for Sexual Abuse Victims: Vicarious Liability in the Court of Appeal,” University of Bristol Law School Blog (26 April 2021). I have found very helpful on the conceptual basis of vicarious liability, Rachel Lowe, Corporate Attribution in Private Law (2022) chapter 4. I have also derived great help from Donal Nolan, “Reining in Vicarious Liability” (2020) 49 ILJ 609; and from Vicarious Liability in the Common Law World (2022, ed Paula Giliker) which is a collection of essays viewing vicarious liability from a comparative common law perspective.

At the relevant time, the Barry Congregation of Jehovah's Witnesses (“the Barry Congregation”) held three weekly religious services. Two of the services were held at the “Kingdom Hall” (which is the name given to their place of worship by Jehovah's Witnesses), each lasting approximately 1 hour 45 minutes, with the third service typically being held as a small family group in private homes. Those services were comprised of reading and discussing the Bible and Bible-based religious literature. Jehovah's Witnesses do not have a clergy-laity division. Two groups of men have congregational responsibilities: ministerial servants and, above them, elders (or overseers). Ordinary members of a congregation (ie who are neither ministerial servants nor elders) are known as “publishers”.

Mr and Mrs BXB (who I shall refer to as “Mr and Mrs B”) began attending the religious services of the Barry Congregation in 1984. They made lots of friends in the congregation among whom were Mark Sewell, his wife Mary Sewell, and their children. The families initially developed a connection through the secular work Mr B shared with Mark Sewell. Mark Sewell was self-employed and ran his own cleaning business throughout the relevant period. Mrs B's evidence at trial was that the families became close because of Mark Sewell's position as a ministerial servant of the Barry Congregation and then an elder (he became an elder at an undisclosed date in 1989). She said that Jehovah's Witnesses were encouraged to associate only with each other, particularly those who were “good associations” because of their standing in the Barry Congregation. By about 1988 or 1989, Mr and Mrs B and the Sewells had become very close friends. The Sewell children were the same age as theirs, and the children would go round to each other's houses about once a week. The two families had lots in common. They went on a holiday together, they visited each other's houses for tea, they went on days out together, and they went to concerts.

Mrs B developed a special friendship with Mark Sewell. They were the same age and Mrs B considered that Mark Sewell became her best friend.

Towards the end of 1989, Mr and Mrs B noticed a change in Mark Sewell's behaviour. He began to abuse alcohol and appeared depressed. Mark and Mary Sewell frequently argued. Mr and Mrs B provided Mark and Mary Sewell and their children with extra support at this time, including baby-sitting the children and hosting Mary Sewell at their home when she and Mark Sewell had argued.

Around the same time, Mrs B stated that Mark Sewell began flirting with her, including hugging her, holding hands and kissing her. He was also confiding in her.

At trial, Chamberlain J accepted Mrs B's evidence that, in around late 1989 or early 1990, Mrs B was so concerned about Mark's behaviour that she suggested to Mary that the two of them speak to Mark's father, Tony Sewell, who was also an elder. Without Mark's knowledge, Mrs B and Mary arranged to meet Tony at his home. Tony explained that Mark was suffering from depression and that he needed love and support. Tony requested that Mr and Mrs B provide Mark with extra support. Mrs B felt Tony Sewell was asking her and her husband to continue to allow Mark to confide in her, to be friends to Mark and Mary, and to help with Mark's depression. But Mrs B accepted that Tony Sewell did not ask her specifically to be alone with Mark.

Chamberlain J accepted Mrs B's evidence that, had it not been for the fact that Mark Sewell was an elder and she had received an instruction from another elder, Tony Sewell, their friendship with Mark and Mary would have come to an end well before the rape occurred.

Over the...