25 March 2021 by

In The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356, the Courtroom of Enchantment has supplied additional steering on vicarious legal responsibility following Supreme Courtroom selections final yr in VM Morrison Supermarkets PLC v Varied Claimants [2020] UKSC 12 and Barclays Financial institution v Varied Claimants [2020] UKSC 13.

As set out in these posts by Robert Kellar QC and Anna Williams, the ‘regulation of vicarious legal responsibility is on the transfer’ (within the phrases of Lord Phillips). This case, nonetheless, illustrates sure settled ideas rising. On this case, the choice that Barry Congregation was vicariously responsible for the rape of Mrs B by Mark Sewell, an elder of the Congregation, in 1990, was upheld.

Information

Mark Sewell was convicted of the rape (amongst different offences) of Mrs B in 2014. Mrs B suffered episodes of despair and post-traumatic dysfunction. She introduced a declare in opposition to, amongst others, the Trustees of the Barry Congregation for the accidents suffered on account of the rape claiming they have been vicariously liable. There was a second limb to the declare associated to the investigation and ‘judicial course of’ undertaken by the congregation when Mrs B reported the rape to elders in 1991. Nevertheless, as a result of the Excessive Courtroom discovered that the Barry Congregation was vicariously liable, the second limb was not thought-about.

Grounds of Enchantment

The take a look at for vicarious legal responsibility was recognized by Lord Phillips in Catholic Baby Welfare Society and Others v Varied Claimants and the Institute of Brothers of the Christian Colleges and Others [2012] UKSC 56. Two questions are posed:

  1. whether or not the connection between the tortfeasor and the get together stated to be vicariously liable is one that’s able to giving rise to legal responsibility;
  2. whether or not there’s a sufficiently shut connection between the connection between the tortfeasor and the get together stated to be vicariously liable and the act or omission of the tortfeasor.

The attraction was based mostly on two grounds:

  1. The choose erred within the first utilized take a look at for vicarious legal responsibility by his conclusion that the actions undertaken by Mark Sewell have been an integral a part of the ‘enterprise’ actions carried on by the defendants and that the fee of the rape was a threat created by the defendants assigning these actions to Mark Sewell.
  2. The choose erred in his software of the second utilized take a look at for vicarious legal responsibility in concluding that the rape was sufficiently intently linked to Mark Sewell’s place as an elder to justify the imposition of vicarious legal responsibility.

Apparently, the Appellant sought the permission of the courtroom so as to add a brand new floor of attraction, particularly that the choose had wrongly decided non-justiciable issues of non secular dogma. This was given brief shrift, with Davies LJ stating that the choose had accurately utilized the regulation and the applying was ‘misconceived’.

Authorized Background

The judgment provides a helpful abstract of the regulation on vicarious legal responsibility. Many of those judgments will likely be very acquainted to readers, however it’s price reminding ourselves of among the case regulation as set out by the Courtroom of Enchantment.

In Maga v Archbishop of Birmingham and Anr [2010] 1 WLR, Lord Neuberger MR (as he was then) recognized related elements to the problem of ‘shut connection’, together with the position of belief and duty, or ethical authority, of a Catholic priest who sexually abused a non-Catholic baby who he was working with as his position as a youth employee. In that judgment it was stated that while the kid was not a member of the priest’s congregation, the “progressive phases of intimacy” have been solely attainable due to the priest’s standing. This offered the shut connection between the abuse and what the priest was authorised to do.

Catholic Baby Welfare Society and Others v Varied Claimants and the Institute of Brothers of the Christian Colleges and Others [2012] UKSC 56 (generally known as the ‘Christian Brothers’ case) involved the sexual abuse of Catholic boys by lecturers who have been employed by a Catholic residential establishment. Lord Phillips described ‘the important closeness of connection between the connection between the Defendant and the tortfeasor and the acts of abuse thus entails a powerful causative hyperlink.’ [my emphasis].

In Cox v Ministry of Justice [2016] UKSC 10, Lord Reed said that the scope of vicarious legal responsibility depended upon the connection between a person and the defendant, and the way wherein the person’s conduct was associated to that relationship. It was additionally clarified that the defendant needn’t be engaged in industrial actions or making a revenue from the tortfeasor’s exercise. Relatively, there could also be vicarious legal responsibility if the person carried on actions assigned to him by the defendant as an integral a part of the defendant’s operations and for its profit (whereby the defendant created the chance of the tort being dedicated).

In Varied Claimants v Barclays Financial institution Plc [2020] UKSC 13, the problem for the Supreme Courtroom was whether or not a health care provider, who carried out medical examinations on behalf of the financial institution at his dwelling and who was alleged to have sexually assaulted claimants in the midst of his examinations, was in a relationship with the financial institution which was sufficiently akin or analogous to employment in order to make it truthful, simply and affordable to impose legal responsibility, or whether or not he was an unbiased contractor.

The courtroom decided that the physician was not employed by the financial institution. He did work for the financial institution, the financial institution made preparations for the examination and despatched him varieties to finish. The physician was not paid a retainer which could have obliged him to simply accept a sure variety of referrals from the financial institution, he was paid a price for every report. He was free to refuse an supplied examination. The physician would have carried his personal medical legal responsibility insurance coverage. He was in enterprise on his personal account as a medical practitioner with a portfolio of sufferers and purchasers, a type of purchasers was the financial institution. The financial institution was held to not be vicariously responsible for any wrongdoing by the physician, who was to be considered an unbiased contractor.

In Varied Claimants v Wm Morrison Supermarkets Plc [2020] UKSC 12, Lord Reed commented additional on vicarious legal responsibility within the context of sexual abuse of kids:

… the shut connection take a look at has been utilized in another way in circumstances involved with the sexual abuse of kids, which can’t be considered one thing achieved by the worker whereas performing within the unusual course of his employment. As an alternative, the courts have emphasised the significance of standards which might be significantly related to that type of wrongdoing, such because the employer’s conferral of authority on the worker over the victims, which he has abused.

The Excessive Courtroom’s judgment

The Excessive Courtroom Judgment recognized key conclusions as to the connection which knowledgeable the discovering of vicarious legal responsibility:

Taking these options of the connection collectively, the next conclusions may be drawn:

(a) The truth that Mark Sewell held a place within the Congregation (initially, ministerial servant) was an vital a part of the rationale why Mr and Mrs B began to affiliate with Mark and Mary Sewell.

(b) However for Mark Sewell’s and Tony Sewell’s place as elders, Mr and Mrs B would in all probability not have remained mates with Mark Sewell by the point of the rape. There was, subsequently, the ‘sturdy causative hyperlink’ referred to by Lord Phillips within the Catholic Baby Welfare Society case at [86].

(c) The Defendants created or considerably enhanced the chance that Mark Sewell would sexually abuse Mrs B by creating the situations wherein the 2 is perhaps alone collectively by means of (i) Tony Sewell’s implied instruction that she proceed to behave as his confidante (an instruction which carried the authority conferred by the Defendants due to his place as an elder) and (ii) investing Mark Sewell with the authority of an elder, thereby making it much less seemingly that Mrs B (or others) would query his motives and emboldening him to suppose that he might act as he wished with little worry of opposed penalties.

(d) The rape came about in circumstances intently linked to the finishing up by Mark Sewell and Mrs B of non secular duties at a venue – Mark Sewell’s dwelling – which was ‘accredited’ by the elders of the Barry Congregation.

(e) One of many causes for the rape was Mark Sewell’s perception that an act of adultery was obligatory to supply scriptural grounds for him to divorce Mary. His mindset, wherein he seems to have equiparated rape and adultery, was intently certain up along with his place as an elder.”

Courtroom of Enchantment’s judgment

The Courtroom of Enchantment concurred. It was emphasised that, with related themes to Christian Brothers, however for Mark Sewell’s place as an elder inside the congregation, Mrs B wouldn’t have remained mates with him, and his spouse, till the time of the rape. The judgment states:

It’s clear from the proof of Mr Schofield that the Jehovah’s Witness organisation is central to the lives of its publishers, ministerial servants and elders. Its construction might pretty be described as hierarchical. It workout routines management over its members, which fits past actions straight associated to the dissemination of the Kingdom message. It discourages socialising exterior the organisation. It permits solely males to develop into ministerial servants or elders, figuring out elders as overseers who have been accountable for taking the lead in caring for the “sheep-like-ones” … The hearts of the congregation are stated to be motivated to cooperate with such loving overseers. The congregation was knowledgeable that they might be helped to obey and honour these taking the lead in the event that they keep in mind that God himself has offered the elders … The elders are stated to be skilled to be form, loving and useful, but “agency” in upholding Jehovah’s righteous requirements.”

It was accepted that an elder is as integral to the ‘enterprise’ of a congregation of Jehovah’s Witnesses as a priest is to the ‘enterprise’ of the Catholic Church.

As to stage 2, and whether or not there was a detailed connection between the connection between the tortfeasor and the organisation and the act or omission of the tortfeasor, the next was stated:

Contained inside the tailor-made take a look at in circumstances of sexual abuse is the idea of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailor-made model of the take a look at applies in circumstances wherein adults are alleged to have been sexually abused because it does in such circumstances involving youngsters as a result of the rationale for the take a look at is similar. The problem is the connection between the abuse and the connection between the tortfeasor and the defendant. It’s not the actual traits of the sufferer. On the details of this declare, what’s related for the aim of the shut connection take a look at is the conferral of authority by the Jehovah’s Witness organisation upon its elders, coupled with the chance for bodily proximity as between an elder and publishers within the congregation.

Males LJ supplied an alternate rationalization as to the second stage, emphasising the connection of energy and the direct position within the rapid circumstances of the rape.

All three judges dismissed the attraction and agreed that the actual fact Mrs B was an grownup when she was raped, fairly than baby victims of sexual abuse as in most of the different vicarious legal responsibility circumstances, didn’t differentiate the case. Even an grownup could also be prone to relationships which contain a threat of abuse.

Conclusion

The case provides additional steering for  vicarious legal responsibility and sexual offences comitted by these in positions of duty and ethical authority, and additional confirms and, to a lesser extent, widens the scope for future claimants on this regard.

Jake Richards is a barrister at 9 Gough Chambers. He tweets @JakeBenRichards