BXB: Vicarious Liability, Sexual Abuse And The Canadian Perspective

• Law Firm: Deka Chambers
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation
• Author: Mr Jack Harding
• Published date: 05 May 2023

1. In Mohamud v Morrisons Supermarkets (2016) AC 677, Lord Dyson MR observed that:

"To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera"

2. Nonetheless, since Mohamud was decided in 2016, that quest has continued in earnest. Indeed, the issue has been before the Supreme Court on three separate occasions. In the latest case, Trustees of the Barry Congregation of Jehovah's Witnesses v BXB (2023) UKSC 15, handed down on 26th April 2023, their Lordships sought to bring clarity to the application of the law in the particular context of sexual abuse.

3. The facts of the case were unusual in that, unlike many other sexual abuse cases in this area of the law, the Claimant victim (Mrs B) was a 29-year-old adult at the relevant time. In 1984 she and her husband began attending the religious services of the Barry congregation of the Jehovah's witnesses. They quickly made friends with another couple, Mary and Mark Sewell. Mark Sewell, who ran a self-employed cleaning business, was, by 1989, an 'elder' in the congregation. Both couples had children of similar age who would socialise with one another. The families became close, went on holidays together and spent time at each other's houses. Mrs B considered Mark Sewell to be her best friend.

4. In late 1989 Mark and Mary Sewell's relationship came under strain. He became depressed and drank heavily. Mrs B noticed that he would confide in her and that his behaviour was increasingly flirtatious. Mr and Mrs B agreed to speak with Mark Sewell's father - also an elder - about his behaviour. He asked them to support his son and help him through his problems. The first instance judge (Chamberlain J) found as a fact (unchallenged on appeal) that had it not been for the fact that Mrs B had received what she perceived as an instruction from an elder to help Mark Sewell, their friendship would have come to an end before the sexual abuse occurred.

5. In April 1990, following a morning of door-to-door evangelising together, both couples went to a local pub for lunch. Mark and Mary Sewell had an argument. Mark Sewell left the pub and confided to Mr B outside that he wanted to divorce his wife. When Mr B explained that that was not possible under the principles followed by Jehovah's Witnesses because divorce was only permitted on grounds of adultery, Mr Sewell said that he would convince his wife that the ground was made out. Later that afternoon both couples returned to the Sewell house. Mark Sewell was alone in a back room Mrs B went to see if he was ok, at which point he pushed her to the ground and raped her.

6. The claimant established vicarious liability at first instance a decision unanimously upheld by the Court of Appeal. The Defendant appealed to the Supreme Court, which unanimously upheld the appeal Lord Burrows give the single judgment with which all the other judges agreed.

Stage 1

7. It is settled law that there are two stages in the inquiry into vicarious liability. Stage 1 concerns the relationship between the Defendant and tortfeasor. Stage 2 looks at the connection between the relationship and the wrongdoing by the tortfeasor.

8. Although the Defendant challenged the lower courts' analyses of both stages, the Supreme Court had no hesitation in upholding the decision that the relationship between a Jehovah's Witness elder and the organisation was one of 'quasi-employment'. The work was unpaid but this was not (so the Court held) in anyway a decisive favour. The important features were that:

a. As an elder, Mark Sewell was carrying out work on behalf of and assigned to him by, the organisation;

b. He was performing duties in furtherance of and integral to the aims and objectives of the organisation;

c. There was a process by which elders were appointed and removed;

d. There was a hierarchal structure into which the role of the elder fitted.

9. An interesting feature of the case is that the Claimant had brought the claim against both the Trustees of the Barry Congregation, apparently as representatives of an unincorporated association, and against the Watch Tower and Bible Tract Society of Pennsylvania. Since the latter had given an express undertaking to indemnify the former in respect of any judgment, Chamberlain J did not think it was necessary to undertake any further inquiry into which organisation was the correct Defendant. However, the Supreme Court noted that it was the Britain Branch of the Watch Tower and Bible Tract Society of Pennsylvania which appointed and removed elders in Britain. The power to appoint...