On 26 April 2023, the Supreme Court handed down judgment in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB  UKSC 15. Having reviewed all the leading authorities of the House of Lords and Supreme Court on vicarious liability from the last twenty or so years, the judgment set out five principles a court should apply to determine whether a defendant is vicariously liable for the wrongful act(s) of a tortfeasor. Accordingly, it is essential practitioners dealing with alleged vicarious liability cases know what these principles are and how a court is likely to apply them.
The claimant was a member of the Barry Congregation of Jehovah’s Witnesses [‘the congregation’]. When she was 29 years of age, she was raped by an ‘elder’ of the congregation. The rape took place in the backroom of the elder’s house in the afternoon. On the morning of the same day the claimant and the elder had been door-to-door evangelising on behalf of the defendant. The elder was convicted of rape. Thereafter, the claimant brought a claim for damages for personal injury (including psychiatric harm) against the defendant, alleging that it was vicariously liable for the rape – the tort of trespass – committed by the elder.
At first instance, Chamberlain J held that the defendant was vicariously liable and found for the claimant. His decision was unanimously upheld by the Court of Appeal (Bean, Nicola Davies and Males LJJ). The defendant appealed to the Supreme Court.
The single judgment of the Supreme Court was given by Lord Burrows, with whom the rest of the court (Lord Reed, Lord Hodge, Lord Briggs and Lord Stephens) agreed.
Lord Burrows “examined the main 21st century decisions on vicarious liability of the highest court”, namely:
Lister v Wesley Hall Ltd  UKHL 22, Various Claimants v Catholic Child Welfare Society  UKSC 56 [‘Christian Brothers’], Cox v Ministry of Justice  UKSC 10, Mohamed v WM Morrison Supermarkets plc  UKSC 11, Armes v Nottinghamshire County Council  UKSC 60, Various Claimants v WM Morrison Supermarkets plc  UKSC 12 and Various Claimants v Barclays Bank plc  UKSC 13.
Having done so, his Lordship found at  that “it is now possible to pull together the legal principles applicable to vicarious liability in tort that can be derived from those authorities”. In the same paragraph, he distilled those principles to five, enumerated (i) to (iv), as follows:
(i) There are two stages to consider in determining vicarious liability. Stage 1 is concerned with the relationship between the defendant and the tortfeasor. Stage 2 is concerned with the link between the commission of the tort and that relationship. Both stages must be addressed and satisfied if vicarious liability is to be established.
(ii) The test at stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship. But in applying the “akin to employment” aspect of this test, a court needs to consider carefully features of the relationship that are similar to, or different from, a contract of employment. Depending on the facts, relevant features to consider may include: whether the work is being paid for in money or in kind, how integral to the organisation is the work carried out by the tortfeasor, the extent of the defendant’s control over the tortfeasor in carrying out the work, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, what the situation is with regard to appointment and termination, and whether there is a hierarchy of seniority into which the relevant role fits. It is important to recognise, as made clear in Barclays Bank, that 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.
(iii) 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…The application of this “close connection” test requires a court to consider carefully on the facts the link between the wrongful conduct and the tortfeasor’s authorised activities. 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. Cases such as Lister and Christian Brothers show that sexual abuse of a child by someone who is employed or authorised to look after the child will, at least generally, satisfy the test. But, 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.
(iv) As made particularly clear by Lady Hale in Barclays Bank, drawing on what Lord Hobhouse had said in Lister, the tests invoke legal principles that in the vast majority of cases can be applied 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. This is not to deny that in difficult cases, and in line with what Lord Reed said in Cox, 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. What precisely the underlying policy is has been hotly debated over many years by academics and judges alike… At root the core idea…appears to be that the employer or quasi-employer, who is taking the benefit of the activities carried on by a person integrated into its organisation, should bear the cost (or, one might say, should bear the risk) of the wrong committed by that person in the course of those activities.
(v) The same two stages, and the same two tests, apply to cases of sexual abuse as they do to other cases on vicarious liability. Although one can reasonably interpret some judicial comments as supporting special rules for sexual abuse, this was rejected by Lord Reed in Cox. 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.
Application of the Legal Principles to the Facts
Applying stage 1 of the test to determine vicarious liability, Lord Burrows found that the relationship between the defendant and the elder was akin to employment. Whilst the elder was not paid in money or benefits by the defendant, which is an indicator that the relationship is not one akin to employment, that was not decisive.
The “relevant features” here rendering the relationship akin to employment were, applying those set out in [58(ii)]: as an elder the tortfeasor was carrying out work on behalf of, and assigned to him by, the defendant; he was performing duties which were in furtherance of, and integral to, the aims and objectives of the defendant; there was an appointments process to be made an elder and a process by which a person could be removed as an elder; and there was a hierarchical structure into which the role of an elder fitted (-).
Lord Burrows found that, at stage 2, neither Chamberlain J at first instance nor Nicola Davies LJ in the Court of Appeal had applied the correct “close connection” test, as framed by him in [58(iii)]. Therefore, given those “errors”, the Supreme Court was entitled to consider stage 2 afresh (-). In doing so, he found, applying the correct close connection test, the claimant failed to satisfy that test ().
He was of this view for six reasons (-):
- The rape was not committed while the tortfeasor was carrying out any activities as an elder on behalf of the defendant. At the time of the rape he was at his own home and was engaged in performing any work connected with his role as an elder (albeit he had been doing so in the morning of the same day when had been door-to-door evangelising with the claimant). The lack of direct connection to the role assigned to him as an elder, in his Lordship’s view, made these facts “significantly different” from A v Trustees of the Watchtower Bible and Tract Society  EWHC 1722 (QB) where the sexual abuse of the child by the ministerial servant took place, after a grooming period, during or after book study, on field service, at Kingdom Hall or at a Convention of Jehovah’s Witnesses and all when he was “ostensibly performing his duties as a Jehovah’s Witness ministerial servant”.
- The primary reason that the rape took place was not because the elder was abusing his position as an elder but because he was abusing his position as a close friend of the claimant when she was trying to help him.
- The tortfeasor was not wearing his “metaphorical uniform” as an elder at the time the tort was committed.
- Whilst Lord Burrows accepted that the tortfeasor’s role as an elder was a “but for” cause of the claimant’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.
- His Lordship did not accept that what happened in this case was equivalent to the gradual grooming of a child for sexual gratification by a person in authority over that child. The violent and appalling 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 the close friendship between the tortfeasor and the claimant than to the tortfeasor’s role as an elder.
- There was no relevance, except as background, in the role played by the tortfeasor’s father, another elder, who asked the claimant to remain the tortfeasor’s friend and support him despite his recent inappropriate behaviour towards her or the fact that the tortfeasor’s inappropriate kissing on the lips with female members of the congregation when welcoming them was not condemned. One is not talking about vicarious liability for any tort of the tortfeasor’s father and, as regards the latter, one is not talking about liability in the tort of negligence.
Pursuant to the principle set out at [58(iv)], “as a final check”, his Lordship ‘stood back’ and “consider[ed] the policy of enterprise liability or risk that may be said to underpin vicarious liability” and, having done so, decided “that consideration of policy confirms that there is no convincing justification” for the defendant to bear the cost or risk of the rape committed by the elder.
This is a single judgment of the Supreme Court with whom all members of the court agreed. Further, it reviewed all the main decisions of the House of Lords and Supreme Court on vicarious liability this century before setting out the five principles a court should apply to determine whether a defendant is vicariously liable for the wrongful act of tortfeasor. For those reasons, it is to be considered a guideline judgment and the Supreme Court’s ‘latest word’ on that matter. Therefore, a practitioner who needs to consider whether vicarious liability applies in their case should familiarise themselves with the five principles set out in [58(i)-(iv)], the specific framing of the two-stage test incorporated in those paragraphs and the way in which that test and those principles were applied in this case.
Whether or not this is the ‘last word’ of the Supreme Court on vicarious liability, thus bringing to an end the “move” in this area of law referred to by Lord Phillips at  of Christian Brothers, only time will tell.
In terms of legal principle, what this judgment has made clear, at [58(v)], is that the five principles and the two-stage test for vicarious liability as framed therein apply equally to all cases on vicarious liability: there are no special rules or further ‘tailoring’ required for sexual abuse cases.
As for the application of those principles, it would appear from the way they are applied by the Supreme Court to the facts of this case and the dicta contained in the judgment 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 2. However, where the victim of the sexual abuse is an adult, the situation is more nuanced and the court will have to carefully consider, on the facts of the particular case, the extent of the connection between the wrongful act and the acts the tortfeasor was authorised to do in order to determine whether, in that case, stage 2 of the test is satisfied.