Back in April 2020, we reported on how the Supreme Court set to limit the scope of vicarious liability in Claimants v WM Morrison Supermarkets plc and Various Claimants v Barclays Bank plc. More detail on these decisions can be found in our blog "Supreme Court revisits scope of vicarious liability in two key cases".
Mrs BXB’s claim
The claimant, referred to as Mrs BXB, was a member of the Barry Congregation of Jehovah’s Witnesses. She and her husband were good friends with fellow members of the congregation, Mark Sewell, and his wife, Mary. Crucially, Mr Sewell was an elder of the congregation. After a change in Mr Sewell’s behaviour, Mrs BXB contacted his father who advised her that Mr Sewell was suffering from depression and needed love and support.
After a morning spent evangelising with Mr Sewell and his wife, Mrs BXB and her husband went to Mr Sewell’s home. As Mrs BXB went into a room to provide support to Mr Sewell, he raped her. He was prosecuted and convicted of the rape. Thereafter, Mrs BXB brought a claim for damages for personal injury (including psychiatric harm) against the defendant, alleging that it was vicariously liable for the rape committed by Mr Sewell.
Decisions in the High Court and the Court of Appeal
The High Court and Court of Appeal held that the defendant was vicariously liable. The courts considered the “two-stage test” which needs to be met before an employer can be held vicariously liable for the wrongful acts of an individual:
- Stage One considers whether the relationship between the employer and individual is one of employment or “akin to employment”
- Stage Two is the “close connection” test and considers whether the wrongful conduct was so closely connected with the acts that the individual was authorised to do, that it would be regarded as being done while acting in the course of their employment or “quasi employment”
Both courts found that Mr Sewell’s position as an elder was integral to the “business” of the congregation and that there was a strong causative link between his actions and his position and conduct as an elder. As such, the two-stage test was satisfied and the defendant was found to be liable. The defendant appealed to the Supreme Court.
Decision of the Supreme Court
Lord Burrows, giving a unanimous judgment, found that the defendant was not vicariously liable for the rape committed by Mr Sewell and clarified the two-stage test.
Taking Stage One, the Supreme Court agreed with the lower courts that the relationship between the defendant and Mark Sewell was akin to employment.
The important features here rendering the relationship akin to employment were:
- As an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organisation
- He was performing duties which were in furtherance of the aims and objectives of the Jehovah’s Witness organisation
- There was an appointments process to be made an elder and a process by which a person could be removed as an elder
- There was a hierarchical structure into which the role of an elder fitted
Looking at Stage Two, the Supreme Court found that the lower courts had taken irrelevant factors into account when analysing whether there was a “close connection”. Lord Burrows found that the tortious conduct could not be properly regarded as being done in the course of Mark Sewell’s position as an elder. Instead he was abusing his position as a close friend of Mrs BXB when she was trying to help him and that the rape was a “shocking one-off attack”. Lord Burrows found that they were in the same room due to their close friendship and that it was unrealistic to suggest that Mark Sewell never took off his “metaphorical uniform” when dealing with members of the Barry Congregation.
The close connection test had not been satisfied as the rape was not so closely connected with acts Mr Sewell was permitted to do for it to be fairly and properly regarded as committed in the course of his quasi-employment as an elder.
The Supreme Court confirmed that in cases of sexual abuse, the same two-stage test applies as in other cases when considering vicarious liability and there are no special rules or further ‘tailoring’ required for sexual abuse cases. The judgment states that “generally” the “sexual abuse of a child by someone who is employed or authorised to look after them” will satisfy the close connection test at Stage Two.
However, in cases involving adults, the court will have to carefully consider the extent of the connection between the wrongful act and the acts the individual was authorised to do in order to determine whether Stage Two of the test is satisfied.
Comment
The case provides further consolidation of the tests for vicarious liability. The restriction of the “close connection” test is likely to be welcomed by employers. In future we expect the range of cases where vicarious liability is established to be limited.
Of particular note is one of the final comments made by Lord Burrows in his judgment. The fact that the defendant was insured and had “deeper pockets” than the individual, did appear to be a relevant policy consideration in some of the earlier decisions. However, Lord Burrows affirmed that this did not merit an extension of vicarious liability beyond its principled boundaries. The financial position of the parties is therefore less likely to be a consideration in future.
With the Stage One test limited in the Barclays Bank Plc v Various Claimants decision, this case has provided useful clarity on the parameters of the Stage Two test. We predict that the limits of vicarious liability will continue to be tested in the courts although it is clear that its scope is tightening.
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