July 20, 2023
Business Risk
Employment Law
Tort law

The Supreme Court in Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent) [2023] UKSC 15 has recently brought welcome additional clarity to the law of vicarious liability. 

Vicarious liability refers to the tort law concept of a defendant being liable for the wrong of a third party who owed a duty of care to a claimant. Put very simply, the defendant is held responsible for the wrong because it made it possible for the wrong to be committed. It is a familiar concept in an employment context, but it is also relevant where the third party is an independent contractor. 

Facts

The facts of BXB are distressing. Mrs BXB and her husband began attending religious services of the Barry Congregation in 1984. 

Through these services, Mr and Mrs BXB met a Mark Sewell who was married to a Mary Sewell. They all met socially and Mrs BXB described Mark Sewell as being her ‘best friend’.  

Mark Sewell became an ‘elder’ of the Congregation in 1989.

In late 1989, Mark Sewell became depressed and started drinking. He was in constant arguments with Mary, and as a result Mrs BXB took care of the Sewell’s children. Around the same time, Mark Sewell began acting flirtatiously with Mrs BXB. 

Mrs BXB became so concerned with Mark Sewell’s behaviour that she suggested to Mary Sewell that they both go speak to Mark’s father, who was also an elder of the Barry Congregation. Mark’s father explained that Mark was suffering from depression, and that he needed ‘love and support’. 

Mrs BXB continued to support Mark and Mary Sewell, but the evidence she gave to the High Court (which was accepted) is that she never would have remained friends with Mark Sewell if he had not been an elder and she had not been instructed by another elder to keep in contact and support him. 

Matters culminated in late April 1990. Mark Sewell had asked Mrs BXB to elope with him – a request that was refused. 

On 30 April 1990, Mark and Mary Sewell, along with Mr and Mrs BXB, had been evangelising door to door in Wales. At lunch, they all went to a local pub. Mark and Mary Sewell argued which resulted in Mark storming off. Mr BXB went after him, and Mark Sewell confessed that he wanted to divorce Mary. Mr BXB informed him that divorce was only permitted by the Jehovah’s Witnesses on the grounds of adultery. Mark Sewell replied that he would convince Mary that he was in fact an adulterer. 

All of them went back to Mark Sewell’s home. Mary Sewell asked Mrs BXB if she could talk with Mark individually to ‘talk some sense into him’ – Mrs BXB wanted to convince Mark Sewell to talk to the other elders about his depression. At this point, when they were alone, Mark Sewell raped Mrs BXB. 

In 1993, Mrs BXB reported the rape to the other elders in the Barry Congregation – which did not dismiss Mark Sewell (ecclesiastical disciplinaries within the Jehovah’s Witnesses require allegations to be corroborated, a high test where an alleged offence took place in private). Mrs BXB reported the offence to the police in 2013, and Mark Sewell was convicted in 2014. 

In 2018 Mrs BXB brought an action for personal injury against (1) the Watch Tower and Bible Tract Society of Pennsylvania (a charitable body that administers the Jehovah’s Witness) and (2) the Trustees of the Barry Congregation. The first defendant declared that it would cover the costs of any adverse judgment against the second defendant – so the differences between the defendants were not considered by the lower courts.

At the High Court it was held that the defendants were vicariously liable. This decision was upheld at the Court of Appeal. 

The Supreme Court’s decision

Lord Burrows delivered the Supreme Court’s judgment. He summarises a wide spectrum of leading cases in the 21stcentury on this issue. 

He explains that prior to 2001, vicarious liability was strictly a matter of an employer, employee relationship. Employers can be held liable for the conduct of their employees, provided that the conduct was in the scope of their employment and authorised (at least indirectly) by the employer. 

It can be seen here how this formulates a two-part test to vicarious liability – stage 1 being about the relationship between the third party and the wrongdoer and stage 2 being about the wrongdoer’s act that harmed the claimant. 

The House of Lords, in 2001, had to deal with a historical case of child sexual abuse in Lister v Hesley Hall Ltd [2001] UKHL 22. In that case a warden of a boarding house was convicted of sexually abusing children under his care. 

Under the test existing at the time, that claim would fail at stage 2 because the employer school would not have authorised the abuse (or, where applicable, the situations in which the abuse was committed). 

The test therefore needed reform, and the House of Lords held that the stage 2 test was assessing whether there was a ‘close connection’ between the employee’s role and their conduct to make the employer vicariously liable. 

Stage 1 of the old test came up for review by the Supreme Court in Catholic Child Welfare Society and others v Various claimants [2012] UKCS 56. A Catholic institute was held to be vicariously liable for the conduct of teachers that were not paid by the institute. Lord Phillips also set out five policy considerations that would also encourage rendering the defendant liable at [35]: 

‘(i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.’

It can be seen that in just over a decade, 300 years of legal jurisprudence was being overhauled (an early statement of the concept of vicarious liability can be seen in Hern v Nicols (1700) 1 Salkeld 289). 

Lord Burrows observes that the Supreme Court continued to find for claimants in vicarious liability claims. In Cox v Ministry of Justice [2016] UKSC 10 it was held that the Ministry of Justice was liable for the actions of a prisoner working in a prison kitchen. 

Another judgment, handed down on the same day as Cox, was Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11. Morrisons was held vicariously liable for an employee that chased and beat a member of the public.

The scope for organisations to take on liability for the conduct of an individual (in relation to which no employer-employee type relationship may exist) that they would never condone or authorise – at this juncture – is very wide. 

Lord Burrows then proceeds to review two more recent judgments of the Supreme Court in Barclays Bank plc v Various Claimants [2020] UKSC 13 and WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12. As Lord Burrows observers at [48]: ‘one may detect behind them an anxiety that the scope of vicarious liability was being widened too far and, in both cases, the Supreme Court reversed the Court of Appeal and held that there was no vicarious liability.’

Barclays dealt with stage 1 of the test for vicarious liability. In that case, a doctor contracted by Barclays to carry out pre-employment medical tests sexually assaulted multiple women during the examination. The doctor died, and the claimants brought an action against Barclays.

The Supreme Court held that the doctor was an independent contractor. The test at stage 1 is whether there is an employment relationship or a relationship akin to employment between the defendant and the wrongdoer. 

In Morrison, an internal auditor leaked internal payroll data in ‘pursuance of a vendetta’. This was held not to constitute conduct with sufficient connection to employment for vicarious liability to arise. 

Lord Burrows summarises the current position of the law at [58] as follows: 

  • “The test at stage 1 is whether the relationship between the defendant and the [wrongdoer] was one of employment or akin to employment…there is no vicarious liability where the [wrongdoer] is a true independent contractor in relation to the defendant. 
  • “The test at stage 2…is whether the wrongful conduct was so closely connected with acts that the [wrongdoer] was authorised to do that it can fairly and properly be regarded as done by the [wrongdoer] while acting in the court of the [wrongdoer’s] employment or quasi-employment.”
  • Where the position in relation to stage 1 and stage 2 is uncertain, the Court may have regard to the five policies set out by Lord Phillips in Christian Brothers to determine whether it would be just for the defendant to be held vicariously liable. 

Having done this useful review of the cases, Lord Burrows turns to apply the law to the facts. 

The first defendant – the Watch Tower Bible and Tract Society of Pennsylvania – was the entity that had the power to appoint and remove elders, so it was the correct party to be sued.

Regarding stage 1, Lord Burrows held at [66] that in being assigned the role of an elder (which was unpaid) Mark Sewell was nevertheless ‘performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation’ – therefore a relationship akin to employment arose. 

Regarding stage 2, Lord Burrows held that Mark Sewell’s conduct was not so closely connected with the work he was authorised to do as an elder. His reasoning at [75] is the clearest statement of this analysis: ‘[t]he driving force behind their being together in the room at the time of the rape was their close personal friendship not Mark Sewell’s role as an elder. Put another way, the primary reason that the rape took place was not because Mark Sewell was abusing his position as an elder but because he was abusing his position as a close friend of [Mrs BXB] when she was trying to help him.

Therefore, the appeal was allowed and the decisions of the lower courts were overturned. In short, the organisation was not found to be vicariously liable.

Comment 

Morrison, Barclays, and now BXB represents a halt of judicial creep. The risks to organisations were, in some ways, becoming too much. 

The limits on stage 1 will be welcome to businesses that utilise contractors. There can be more comfort where these contractors are genuine. But there remains a need to ensure that the relationship does not itself creep into one like an employment relationship. Not only for vicarious liability purposes but for tax, contractual, and employment purposes. 

Stage 2 also clearly delineates the line between an employee or quasi-employee acting for their own purposes and the purposes of their employer. 

Vicarious liability is a commercial risk not often considered by non-lawyers. A limitation of liability clause may look helpful, but underneath it lies a significant legal penalty if an employee (or, in some cases, an independent contractor) commits a harmful wrong that cannot easily be contracted out of or indemnified away. 

At EM Law, we are experts in negotiating contracts both with employees and independent contractors. If you have any questions about vicarious liability and the potential risks to your business, do not hesitate to contact us here.