Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 (26 April 2023)
Citation: Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 (26 April 2023)
Rule of thumb:If an employee in an organisation is out socialising with a client/customer/fellow employee away from the office, and the employee rapes the client/customer/fellow employee, is the employee’s organisation liable for the damages caused? No, there will be next to no exceptional circumstances when vicarious liability will extend this far.
Background facts:The basic facts of this case were that the defenders were an association of Jehovah’s Witnesses. One of their male elder’s and preachers became friendly with a female church-goer called Mrs B. This male elder’s life began to degenerate into alcoholism & depression. One afternoon the elder & his wife were out for a pub-lunch with Mrs B. They went back to the Elders’ home to continue socialising. A disagreement broke out and the male elder left the socialising. Mrs B went to check on the male elder, and whilst isolated in the room, the elder raped Mrs B. Mrs B suffered post-traumatic stress disorder as a result of this. The male elder did not have the damages to pay the damages done to Mrs B so the Jehovah’s Witnesses’ Association were sued.
Parties argued:This matter boiled down to the legal principle of vicarious liability. Mrs B argued that the association was vicariously liable for the elder. The Association argued that vicarious liability did not apply because, (1) the elder was not an employee and was not paid by them, and, (2) Even if he was, what he did was so far removed from his preaching duties as an elder that vicarious liability did not extend to this.
Court held:The Court did not uphold Mrs B’s arguments. The Court affirmed that although the elder was not registered as an employee & being paid a wage, he was still doing duties akin to employment, with the association passing him details of people to preach to & him furthering the cause of the association, so vicarious liability did apply. However, the second part of the test was not passed. The Court held that where people are out socialising together, and then carry this on back to a property where a serious crime of violence then occurs, then the organisation is not vicariously liable for this as it is too far removed from the employees’ duties.
Ratio-decidendi:
‘Stage 1 of vicarious liability: At the first stage of the vicarious liability analysis, the test to be applied is whether the relationship between the Jehovah’s Witness organisation and Mark Sewell, in his role as an elder, was akin to employment. In my view, the relationship was indeed akin to employment and the decisions of the lower courts were therefore correct at stage 1. Although in his submissions Lord Faulks KC, counsel for the defendants, stressed that the work of an elder was unpaid, whether in money or benefits in kind (such as food and accommodation) - and that an elder was not even entitled to any expenses in carrying out his role - he stopped short of submitting that economic dependence was a necessary feature of a relationship being akin to employment. He was correct to do so. No doubt the fact that there is no payment for the work is an indicator that the relationship is not one akin to employment but it is far from being decisive. 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 of vicarious liability: At the second stage of the inquiry, with respect, a number of errors were made by Chamberlain J some of which were repeated by Nicola Davies LJ and Males LJ. Neither Chamberlain J nor Nicola Davies LJ set out that the correct “close connection” test was that laid down in Dubai Aluminium drawing on Lister, as strongly confirmed, subsequent to Chamberlain J’s judgment, by Lord Reed in Morrison. Moreover, factors (a) to (e) set out in para 24(iii) above should not have been regarded as important by Chamberlain J; and Nicola Davies LJ was wrong to rely on factors (a)(b) and (c) and Males LJ was wrong to rely on factors (b) (c) and (e). These were errors because, for example, the early flowering of the friendship should have had no relevance to vicarious liability except as background; “but for” causation should not have been given the prominence it was given; the role of Tony Sewell was essentially irrelevant except as part of the background because he was not the person who committed the tort; the fact that, before lunch on the day of the rape, Mrs B and Mark Sewell had been on pioneering activities was again essentially irrelevant except as background; and Mark Sewell’s distorted view, equating rape and adultery, should have had no significance… In my view, applying the correct close connection test as set out in para 71 above, the claimant fails to satisfy that test. This is for the following reasons. First, the rape was not committed while Mark Sewell was carrying out any activities as an elder on behalf of the Jehovah’s Witnesses. He was at his own home and was not at the time engaged in performing any work connected with his role as an elder… In my view, therefore, the close connection test is not satisfied. 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’, Lord Burrows at 65-81
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.