Supreme Court hands down its judgment in BXB, concerning the issue of vicarious liability
Background and precis
Judgment has been handed down in Trustees of the Barry Congregation of Jehovah’s witnesses (Appellant) v BXB (Respondent) [2023] UKSC 15, on appeal from [2021] EWCA Civ 356.
The issues for the Supreme Court were:
(i) Whether the perpetrator in his part-time volunteer role as an elder was in a position akin to employment with the defendant the purposes of the Stage 1 test for vicarious liability.
(ii) Whether the Court of Appeal had been correct to hold that a “tailored version” of the close connection test applies beyond cases of child sexual abuse to a case of adult rape, for the purposes of the Stage 2 test for vicarious liability.
(iii) Whether the Court of Appeal was correct to hold that there was a sufficiently close connection between the rape of the claimant and the perpetrator’s part-time volunteer role as an elder in the Barry Congregation for the purposes of the Stage 2 test for vicarious liability.
The leading judgment is given by Lord Burrows with whom Lord Reed, Lord Hodge, Lord Briggs and Lord Stephens agree.
We are reminded that vicarious liability in tort is an unusual form of liability, which does not rest upon the defendant owing a duty (in contrast to strict liability) but arises because a third party has committed a tort against the claimant.
The judgment provides an erudite history of the development of the English Law on vicarious liability. Lord Burrows explains that the parameters of liability were fairly well settled until relatively recently when adaptation and reframing were required to deal appropriately with many claims for sexual abuse of children and also because of changes in the patterns of work relationships.
The first problem was that the types of relationship in question between the defendant and the tortfeasor may fall outside that of employer and employee. The second is that intentional torts (including sexual abuse) do not fit easily into the old fashioned concept that the tortfeasor’s act is merely an unauthorised mode of doing some act authorised by the employer.
The first expansion of the boundaries of vicarious liability came in Lister v Hesley Hall Ltd (“Lister”) [2001] UKHL 22, [2002] 1 AC 215. It was confirmed in subsequent cases, including Various Claimants v Catholic Child Welfare Society (“Christian Brothers”) [2012] UKSC 56, [2013] 2 AC 1; Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660; Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, [2016] AC 677; and Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355. These authorities clarify that there are two stages of the inquiry into vicarious liability: Stage 1 looks at the relationship between the defendant and the tortfeasor; and Stage 2 looks at the connection between that relationship and the commission of the tort by the tortfeasor.
Two further decisions of the Supreme Court, handed down on the same day in 2020, Various Claimants v WM Morrison Supermarkets plc (“Morrison”) [2020] UKSC 12, [2020] AC 989 and Various Claimants v Barclays Bank plc (“Barclays Bank”) [2020] UKSC 13, [2020] AC 973 sought to clarify the boundaries of the newly expanded vicarious liability and, as Lord Burrows states at [48]:
“Barclays Bank was concerned with stage 1, while Morrison was concerned with stage 2. 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”.
In BXB, the Supreme Court was faced with applying the modern law on vicarious liability to a case involving the rape of a 29 year old married woman by an elder of the Jehovah’s Witnesses.
In summary, the claimant and her husband (Mr and Mrs B) initially developed a connection with the perpetrator (MS) and his wife Mary through the husbands’ secular work. The friendship continued in the context of their membership of the defendants’ congregation. MS and Mr B had congregational responsibilities. MS was a ministerial servant when he first became friendly with Mrs B and was an elder at the time of the rape. Mrs B described MS as her best friend.
Later, MS began to abuse alcohol and became depressed. He frequently argued with Mary. He started flirting with Mrs B including hugging her, holding hands and kissing her. He was also confiding in her about his failing marriage. Such was Mrs B’s concern that she spoke to MS’s father (TS), another elder, who told her that MS was depressed and needed support. TS asked Mrs B and her husband to continue to provide MS with love and support.
On the morning of 30 April 1990, Mr and Mrs B and MS and Mary were taking part in door-to-door evangelising and then went to a local pub for lunch. MS drank too much and argued with Mary. He stormed off and Mr B found him outside with a card from a local solicitor’s office, saying that he wanted a divorce. Mr B told him that this would not be possible as divorce is only permitted within the Jehovah’s Witness community on the grounds of adultery. MS said that he would convince Mary that grounds for divorce were made out.
Later that afternoon the two families returned to the home of MS and Mary. MS went into a back room. At some point, Mary asked Mrs B to see if she could talk some sense into him. A conversation then ensued during which MS pushed Mrs B to the floor, held her down, and raped her.
Judgment at trial and in the Court of Appeal
Chamberlain J accepted that, had it not been for the fact that MS was an elder and the claimant had received an instruction from another elder, her friendship with MS and Mary would have come to an end well before the rape occurred (the “but for” causation argument). He accepted that vicarious liability was established on the grounds that MS carried on activities as an integral part of the defendant’s “business” and for their benefit and, because the commission of the rape was a risk created by the defendants by assigning those activities to MS (Stage 1) and because “The rape was … sufficiently closely connected to Mark Sewell’s … [position as elder] to make it just and reasonable that the defendants be held vicariously liable for it” (see para. 174) (Stage 2).
As explained by Lord Burrows: “The Judge’s more precise reasoning (see para. 173) included that: (a) MS’s position as a ministerial servant was an important part of the reason why Mr and Mrs B started to associate with MS and Mary; (b) “but for” MS’s (and TS’s) position as elder, Mr and Mrs B would probably not have remained friends with MS by the time of the rape; (c) the defendant significantly increased the risk that MS would sexually abuse Mrs B by creating the conditions (including by TS’s implied instruction that she continue to act as MS’s confidante) in which the two might be alone together; (d) the rape took place in circumstances closely connected to the carrying out by MS and Mrs B of religious duties; and (e) one of the reasons for the rape was MS’s belief that an act of adultery was necessary to provide scriptural grounds for him to divorce Mary” [24(iii)].
The Court of Appeal (Bean, Nicola Davies and Males LJJ) unanimously dismissed the appeal: [2021] EWCA Civ 356, [2021] 4 WLR 42 and held that both stages of the vicarious liability inquiry were satisfied.
Judgment in the Supreme Court
This judgment draws together the legal principles at [58] under the heading “Summary of the modern law on vicarious liability”
The two stage approach is endorsed and both stages must be satisfied if vicarious liability is to be established. The test at Stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. Where an employer-employee relationship exists this will be straightforward. In considering whether the relationship is “akin to employment” it is necessary to consider carefully features of the relationship that are similar to, or different from, a contract of employment. Examples are given of potentially relevant features including payment terms; control; the purpose and objective of the work; the terms of appointment/termination and where the role fits in any hierarchy. As clarified in Barclays Bank, the “akin to employment” expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant.
The test at Stage 2 (the “close connection” test) is whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment. This is the test, subject to two minor adjustments, set out by Lord Nicholls in Dubai Aluminium Co Ltd v Salaam (“Dubai Aluminium”) [2002] UKHL 48, [2003] 2 AC 366, drawing on Lister, and firmly approved in Morrison. The adjustments are: (i) it is necessary to expand the test to include “quasi-employment” as one may be dealing with a situation where the relationship at Stage 1 is “akin to employment” rather than employment; (ii) it is preferable to delete the word “ordinary” before “course of employment” which is superfluous and potentially misleading. That there is a causal connection (i.e. that the “but for” causation test is satisfied) is not sufficient in itself to satisfy the test. As established by Morrison, the carrying out of the wrongful act in pursuance of a personal vendetta against the employer, designed to harm the employer, will mean that this test is not satisfied.
These tests can be applied in the vast majority of cases without considering the underlying policy justification for vicarious liability. The tests are a product of the policy behind vicarious liability and in applying the tests there is no need to turn back continually to examine the underlying policy. The proviso is that in difficult cases, having applied the tests to reach a provisional outcome on vicarious liability, it can be a useful final check on the justice of the outcome to stand back and consider whether that outcome is consistent with the underlying policy.
The same two stages, and the same two tests, apply to cases of sexual abuse as they do to other cases on vicarious liability. The idea that the law still needs tailoring to deal with sexual abuse cases is misleading. The necessary tailoring is already reflected in, and embraced by, the modern tests.
The Supreme Court then applied the correct principles to the facts in BXB and allowed the appeal on the basis that Stage 2 had been wrongly decided. The Court held in respect of Stage 2 that: “a number of errors were made by Chamberlain J some of which were repeated by Nicola Davies LJ and Males LJ”.
In summary:
(i) Both courts failed to set out the correct “close connection” test.
(ii) The early flowering of the friendship should have had no relevance to vicarious liability except as background.
(iii) “But for” causation should not have been given the prominence it was given.
(iv) The role of TS was essentially irrelevant except as part of the background because he was not the person who committed the tort.
(v) The fact that, before lunch on the day of the rape, Mrs B and MS had been on pioneering activities was again essentially irrelevant except as background.
(vi) MS’s distorted view, equating rape and adultery, should have had no significance.
(vi) And at [71] “Males LJ in effect replaced it by a different test when he said, at para 106, “The rape was sufficiently closely connected with Mark Sewell’s status as an elder that it may fairly and properly be regarded as an abuse of the authority over Mrs B conferred on him by that status, such that the defendants who had conferred that authority on him should be vicariously liable.” The correct test that should have been applied (see para 58(iii) above) was whether the wrongful conduct, the rape, was so closely connected with acts that the tortfeasor, Mark Sewell, was authorised to do, that the rape can fairly and properly be regarded as committed by him while acting in the course of his quasi-employment as an elder” [my emphasis].
Having found these errors of law, the Supreme Court then considered afresh the application of the law in respect of Stage 2 with the result that the respondent failed to satisfy the test for the following reasons:
(i) The rape was not committed while MS was carrying out any activities as an elder on behalf of the defendants.
(ii) In contrast to the child sexual abuse cases, at the time of the rape, MS was not exercising control over Mrs B because of his position as elder. It was instead because of her close friendship with him and because she was seeking to provide emotional support to him, that Mrs B went to the back room. The driving force behind their being together at the time of the rape was their close personal friendship not MS’s role as elder.
(iii) MS was not wearing his metaphorical uniform as an elder at the time the tort was committed. Mrs B’s argument that an elder must always be considered to be acting in such capacity was rejected.
(iv) Whilst accepting that MS’s role as an elder was a “but for” cause of Mrs B’s continued friendship with him and hence of her being with him in the back room where the rape occurred, “but for” causation is insufficient to satisfy the close connection test.
(v) The court rejected the contention that this case was equivalent to the gradual grooming of a child for sexual gratification by a person in authority over that child. The rape was not an objectively obvious progression from what had gone before but was rather a shocking one-off attack. In any event, the prior events owed more to their close friendship than to MS’s role as an elder.
(vi) There was no relevance, except as background, in, for example, the role played by TS (the father) or the fact that inappropriate kissing on the lips with female members of the congregation when welcoming them was not condemned. Vicarious liability for any tort of TS or liability in the tort of negligence were not in issue.
(vii) Taking a final overview, consideration of policy confirms that there is no convincing justification for the defendants to bear the cost or risk of the rape committed by MS, notwithstanding that they have deeper pockets. “That is not a justification for extending vicarious liability beyond its principled boundaries”.
Conclusion
Whilst the law of vicarious liability may have appeared to be “on the move” in the words of Lord Philips in Christian Brothers, this judgment confirms that any such movement has not strayed far from historic precedent.
Catherine Foster represented the Appellant both in the Supreme Court and the courts below, with Edward Faulks KC leading her in the Supreme Court.
