No ‘exceptional’ test for vicarious liability in sexual abuse cases: a welcome conclusion by the Supreme Court in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB

 

Introduction

‘Vicarious liability in tort is an unusual form of liability’, began Lord Burrows in the Supreme Court judgement for Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB, handed down on 26 April 2023.[1] Under the doctrine of vicarious liability, employers are held strictly liable for torts committed by a third party, normally those of their employer. In this way, it is unusual as the employer may not be directly at fault for the tortious conduct, but can still incur responsibility. Consequently, there needs to be principled limits on the scope of the doctrine. There have been various suggestions on the policy basis of the doctrine, including compensation,[2] risk-spreading,[3] and providing redress for sexual abuse victims,[4] which inform where the limits on the doctrine should be.

The scope and rationale of the doctrine have been tested in recent years, but the Supreme Court in Trustees of the Barry Congregation of Jehovah’s Witnesses confirmed the modern test for vicarious liability as justified by the policy of enterprise risk.[5] Under this rationale, an employer stands to benefit from the tortfeasor acting for them (as opposed to acting for purely personal reasons), and should therefore carry the burden of any corresponding harm. By affirming enterprise risk as the underlying policy, Lord Burrows rejected the need for a ‘tailored version’[6] of vicarious liability for sexual abuse cases, as the clarified law can adequately address such scenarios.[7] This case comment will explore how the law on vicarious liability has developed, to welcome the Supreme Court judgment as a sound conclusion to the saga of the last two decades, providing a principled limit for imposing vicarious liability and bringing much-welcomed legal certainty.

 

Development of the law on vicarious liability – a ‘tailored test’ for sexual abuse cases?

To impose vicarious liability, two elements must be satisfied. First, there must be a relationship between the employer and tortfeasor that can give rise to vicarious liability. Second, there must be a connection between the tortious act and employment activities. It was with this second requirement that Lord Burrows concerned himself with in Trustees of the Barry Congregation of Jehovah’s Witnesses, and will therefore be the focus for the remainder of the article (while acknowledging that the first requirement has also been ‘on the move’[8] in the last two decades).

The orthodox position was derived from Salmond on Torts, which asked whether the tortious act was an authorised wrongful act, or an unauthorised mode of doing an authorised act.[9] However, this test is difficult to apply in cases of wilful wrongdoing, which could not be considered an authorised act in the normal sense. The difficulty in applying such an approach was demonstrated in Lister v Hesley Hall Ltd,[10] where a boarding house warden sexually abused boys between 12 – 15 and ‘abused the special position in which the school had placed him to enable it to discharge its own responsibilities’.[11] It could not be said that this was an ‘unauthorised mode’ of doing authorised acts, hence the Salmond formulation would have to be ‘stretched to a breaking point’[12] to impose vicarious liability.

As a result, Lord Steyn and Lord Millett refined the test into one of ‘close connection’. While the judgments of the two Lords are mostly similar, they differ on the broadness of the ‘close connection’ test. Under Lord Steyn’s formulation, the second stage of the vicarious liability test would be satisfied if the tortious acts were ‘so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.’[13] On the other hand, Lord Millett offered a narrower justification for imposing vicarious liability ‘where the unauthorised acts of the employee are so connected with acts which the employer has authorised that they may properly be regarded as being within the scope of his employment.’[14] Arguably, it was this narrower justification by Lord Millett that gave rise to concerns of sexual abuse cases falling outside the scope of vicarious liability, as it would be difficult to argue that such acts would ever be within the scope of employment.

This concern was voiced by Lord Phillips in Christian Brothers,[15] who therefore suggested that an exceptional approach would be taken in sexual abuse cases to examine whether the employer placed ‘the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them’ as to facilitate ‘the commission of the abuse.’[16] Therein, the Christian Brothers were figures of authority at a residential Roman Catholic boys school, and had sexually abused the students. Under Lord Millett’s narrow test from Lister, it would be difficult to argue that the sexual abuse was within the scope of employment, allowing the employers to escape liability. Consequently, Lord Phillips held that there would be certain criteria ‘that are particularly relevant to this form of wrong’,[17] although he declined to authoritatively list such criteria on the basis that they were ‘in the course of refinement by judicial decision.’[18]

The hoped-for refinement was not made in Mohamud v WM Morrison Supermarkets Plc, as Lord Toulson relaxed the second requirement into an ‘evaluative judgment’ of whether there was a ‘sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice’.[19] Such a broad test would not require a separate exception for sexual abuse cases, but this was the very same broadness that gave rise to concerns that the doctrine of vicarious liability had been stretched too far.[20] This could arguably be seen in the case itself, as an employee who threatened a motorist to leave and assaulted him was held to be acting in connection with his employment. This begs the question of when an employer will ever be able to escape liability, if an employee’s willing tort would still be considered within the scope of employment.

Subsequently, the Supreme Court reined back from imposing vicarious liability ‘by vague appeals to ‘fairness and justice’[21] in Various Claimants v WM Morrison Supermarkets Plc, returning to the Lister formulations of the close connection test. In doing so, Lord Reed re-considered the need for a ‘tailored test’ in sexual abuse cases as it ‘cannot be regarded as something done by the employee while acting in the ordinary course of his employment.’[22] However, Lord Reed appeared to later switch to Lord Steyn’s broader formulation, when he considered the question to be whether the tortious conduct ‘was so closely connected with acts he [the tortfeasor employee] was authorised to do that, for the purposes of the liability of his employer to third parties, his wrongful disclosure may fairly and properly be regarded as done by him while acting in the ordinary course of his employment.’[23] Therefore, this left open the question of whether the broad or narrow approach should be followed, with consequences impacting the possible need for an exception in sexual abuse cases.

 

Trustees of the Barry Congregation of Jehovah’s Witnesses: Background

The claimant and her husband became members of the Barry Congregation of Jehovah’s Witnesses in 1984. They befriended other members and ‘elders’, who held congregational responsibilities and oversaw the organisation of services amongst other tasks. They became particularly close to an elder called Mark Sewell, and the two families often spent time together. Around 1989, Mark started drinking heavily, arguing more frequently with his wife, and acting inappropriately towards the claimant. On 30 April 1990, the two families had evangelised together, but Mark later stormed off after arguing with his wife. When the claimant went to check in on Mark, he pushed her to the floor, held her down, and raped her.

Mark was convicted in 2014 for rape and indecently assaulting two others. In 2017, the claimant commenced actions for damages against the Watch Tower and Bible Tract Society of Pennsylvania (a charitable corporation supporting global activities of Jehovah’s Witnesses) and the Trustees of the Barry Congregation for personal injury of psychiatric harms following the rape, and alleged the defendants were vicariously liable for the rape and negligent failure to investigate her allegations.

At first instance, the defendants were held vicariously liable for the rape. Chamberlain J found, inter alia, that (1) the claimant’s relationship with Mark was largely due to his position, (2) the defendants increased the risk of the sexual abuse by creating conditions for the parties to be alone, and (3) the rape was closely connected to the religious duties that the claimant and Mark had carried out.[24] As such, both requirements of the test were satisfied.

The Court of Appeal unanimously upheld the conviction. All three judges (Bean, Nicola Davies, and Males LJJ) agreed in their reasoning on the first stage of the vicarious liability inquiry, but Males LJ found the second stage to be ‘more nuanced’[25] as sexual abuse could not be regarded as part of the ordinary course of employment.[26] Males LJ held that a modified test would be applied in such cases, which would examine whether the defendants had placed the tortfeasor in a position of power or authority which was subsequently abused. On the facts, Males LJ held this modified test was satisfied to impose vicarious liability.[27]

 

The Supreme Court judgment

The Supreme Court allowed the appeal, overturning the lower courts to find that the defendants were not vicariously liable. There was no ‘close connection’ between the rape and the activities that Mark would carry out as an elder, as Mark had been at home and was not carrying out any religious duties.[28] Nor did the rape result from Mark abusing his position as an elder – if anything, ‘he was abusing his position as a close friend.’[29] In contrast against the boarding house warden and schoolboys in Lister, both parties in Trustees of the Barry Congregation of Jehovah’s Witnesses were adults of sound mind who could make their own choices and terminate the friendship at any point they wished. Although Mark’s position as an elder ‘was a “but for” cause’ of his friendship with the claimant, this was held to be ‘insufficient’,[30] and the Supreme Court found that the close connection test had not been satisfied.

Notably, Lord Burrows rejected ‘[t]he idea that the law still needs tailoring to deal with sexual abuse cases.’[31] In reaching this decision, Lord Burrows evaluated the ‘modern expansion of vicarious liability [that] started in Lister’[32] to offer a re-statement of the current law, based upon five principles. He confirmed that Lord Steyn’s broader formulation, as recognised in WM Morrison Supermarkets Plc, would be the applicable test for whether the close connection requirement was satisfied. As a final check, Lord Burrows considered that the outcome could be checked against the policy of enterprise risk, confirming it as the rationale for imposing vicarious liability.[33] Having clarified these limits, ‘[t]he necessary tailoring [for sexual abuse cases] is already reflected in, and embraced by, the modern tests.’[34]

 

Evaluation of the Supreme Court judgment

Lord Burrows’ assertion that the modern law can capture cases of sexual abuse is to be welcomed. It addresses Lord Phillips’ concern in Christian Brothers that sexual abuse cases would fall outside the scope of vicarious liability, while still providing a principled limit to the doctrine so that the over-extension seen in Mohamud will not happen again.

Sexual abuse can ‘fairly and properly’ be considered as connected with the tortfeasor’s employment if the enterprise has created the position of power and trust that enabled the abuse, and stood to benefit from the delegation of responsibilities. Under this test, courts would be more willing to find vicarious liability in child sexual abuse cases, as it is more likely that there had been such a position of power and trust created. For example, in Lister, the boarding house warden had been in a position of power and trust by virtue of the boys’ residence there, and the school had stood to benefit from being able to delegate its responsibilities. In Christian Brothers, the defendant Christian Brothers Institute would benefit from assigning responsibility to the abusers and being absolved of caretaking responsibilities. In both cases, it can be seen that the court can ‘fairly and properly’ consider child sexual abuse to fall within the broad ground of the ‘close connection’ test.

On the other hand, the court would be less willing to find that a position of power and trust had been created by the enterprise where two adults are involved, as in Trustees of the Barry Congregation of Jehovah’s Witnesses. The parties are not in as vulnerable a position as children, and it is harder to find that there has been a relationship of welfare that would lead the tort to be closely connected to the employment. This approach should be welcomed as the law should recognise that adults require less protection than children, and liability should not be too readily imposed on an employer for a tort they did not personally commit.

Furthermore, the justification of enterprise risk provides the most convincing rationale for the doctrine of vicarious liability. Compensation has not, and should not, be recognised as the means for imposing liability as that would extend vicarious liability ‘beyond its principled boundaries.’[35] If compensation was recognised as the underlying policy, it would be difficult to imagine any employer who could escape from liability, no matter how remote and wilful the tort of an employee was. Risk-spreading is equally troubling, as it also does not require the employer to contribute in any way to the occurrence of the tort before they may be held liable. By leaving it as a value judgment for when a court deems it appropriate to spread out the risk, parties are left with legal uncertainty and potential retrospective application of the law. Enterprise risk does limit the circumstances when an employer may be liable, namely when they can benefit, so to hold them to possible burdens that are reciprocal upon it does not seem overinclusive. Although it may be argued that enterprise risk faces the same criticism of uncertainty as the court is still invited to determine when it would be ‘fair and just’ to deem an action within the scope of employment, this can be refuted on the ground that it is not the same broad-brush policy judgment demanded for evaluating when it would be appropriate to loss-spread. Therefore, Lord Burrows’ conclusion should be approved.

 

Conclusion

The Supreme Court’s judgment in Trustees of the Barry Congregation of Jehovah’s Witnesses is a welcome conclusion to the saga of vicarious liability, clearly stating the applicable modern legal principles. The test is broad enough to address judicial concerns of providing redress in sexual abuse cases, while imposing a principled limit such that employers will not be liable for any and all torts of third parties in a relationship of employment or ‘akin to employment’. Thus, Lord Burrows is correct to state that there is no longer a need for ‘special rules’[36] in such cases, leaving the law in a desirably clarified state.

 

[1] [2023] UKSC 15, [2023] 4 WLUK 229, [1] (Lord Burrows)

[2] Glanville Williams, ‘Vicarious Liability and the Master’s Indemnity’ (1957) 20(3) MLR 220, 232

[3] Various Claimants v Catholic Child Welfare Society (‘Christian Brothers’) [2012] UKSC 56, [2013] 2 AC 1, [34] (Lord Phillips)

[4] Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11, [2016] AC 677, [10] (Lord Toulson); Donal Nolan, ‘Reining in Vicarious Liability’ (2020) 49 ILJ 609, 609

[5] Trustees of the Barry Congregation of Jehovah’s Witnesses (SC), [47], [58], [82] (Lord Burrows)

[6] WM Morrison Supermarkets Plc, [36] (Lord Reed)

[7] Trustees of the Barry Congregation of Jehovah’s Witnesses (SC), [58] (Lord Burrows)

[8] Christian Brothers, [19] (Lord Phillips)

[9] John W. Salmond, The Law of Torts (1907, Stevens & Haynes)

[10] [2001] UKHL 22, [2002] 1 AC 215

[11] Ibid, [82] (Lord Millett)

[12] Mohamud, [39] (Lord Toulson)

[13] Lister, [28] (emphasis added) (Lord Steyn)

[14] Ibid, [69] (emphasis added) (Lord Millett)

[15] Christian Brothers, [74] (Lord Phillips)

[16] Ibid, [84] (Lord Phillips)

[17] Ibid, [83] (Lord Phillips)

[18] Ibid, [85] (Lord Phillips)

[19] Mohamud, [45] (Lord Toulson)

[20] James Plunkett, ‘Taking Stock of Vicarious Liability’ (2016) 132 LQR 556, 561; Paula Giliker, ‘Can the Supreme Court halt the ongoing expansion of vicarious liability: Barclays and Morrison in the UK Supreme Court? (2021) 37(2) Tottel’s Journal of Professional Negligence 55, 66

[21] Donal Nolan, ‘Reining in Vicarious Liability’ (2020) 49 ILJ 609, 623

[22] WM Morrison Supermarkets Plc, [23] (emphasis added) (Lord Reed)

[23] Ibid, [32] (emphasis added) (Lord Reed)

[24] BXB v Watch Tower and Bible Tract Society of Pennsylvania [2020] EWHC 156 (QB), [2020] 4 WLR 42, [142], [143] (Chamberlain J)

[25] Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB (CA) [2021] EWCA Civ 356, [2021] 4 WLR 42, [91] (Males LJ)

[26] Ibid, [92] (Males LJ)

[27] Ibid, [106] (Males LJ)

[28] Trustees of the Barry Congregation of Jehovah’s Witnesses (SC), [74] (Lord Burrows)

[29] Ibid, [75] (Lord Burrows)

[30] Ibid, [77] (Lord Burrows)

[31] Ibid, [58] (Lord Burrows)

[32] Ibid, [30] (Lord Burrows)

[33] Ibid, [58], [82] (Lord Burrows)

[34] Ibid

[35] Ibid, [82] (Lord Reed)

[36] Ibid, [58] (Lord Reed)