Vicarious Liability: High Court Considers Liability For Historic Sexual Assault Claim

Pending the long-awaited Supreme Court judgments on the appeals in Barclays Bank and WM Morrisons, the High Court has recently handed down a judgment demonstrating how the current test for vicarious liability continues to be applied.

The Claimant alleged that the worldwide governing body of Jehovah's Witnesses, and the local congregation, were vicariously liable for an indecent assault which she suffered from a member of the congregation who held special responsibilities.

Mr Justice Chamberlain found the Defendants should be held vicariously liable for the assault as it was sufficiently closely connected to the position of the tortfeasor within the organisation.

Background

The Claimant (Mrs B) was baptised as a Jehovah's Witness in 1986. From this period and into the 1990s, the Claimant and her husband were friendly with another couple, Mark and Mary Sewell.

Mark Sewell was a 'ministerial servant', a member of the congregation with special responsibilities, and later became an 'elder', a spiritual leader of the congregation.

Following a day of door-to-door evangelising, the two couples returned to the Sewells' home, where Mark Sewell then raped the Claimant. The Claimant did not report the assault to the elders until 1991 after discovering further unacceptable conduct on the part of Mr Sewell. A 'judicial committee' of elders from a neighbouring congregation was convened. They found the allegations unproven.

Tthe Claimant ceased to be one of Jehovah's Witnesses years later. Mr Sewell's offences were subsequently investigated by the police and he was convicted, sentenced to several years in prison.

The Claimant suffered various depressive episodes and PTSD after the criminal trial. She issued a claim against the Defendants, setting out two separate heads of claim, one of which specifically alleged that the Defendants were vicariously liable for the trespass (indecent assault) carried out by Mr Sewell.

Vicarious liability

Undertaking a detailed review of the precedent in respect of vicarious liability to date, Mr Justice Chamberlain considered the current two stage test for establishing vicarious liability as set out in Cox and Mohamud, specifically:

Was the relationship between the Defendants and Mark Sewell such that the Defendants can be liable for his tort of trespass on the Claimant?

What were the circumstances of the tort and was there a close connection between the tort of trespass and the relationship between Mark Sewell and the...

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