Supreme Court clarifies vicarious liability two-stage test

In Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15, the Supreme Court continued its trend of limiting the widening of the scope of vicarious liability.

 

Mrs B and her husband attended services of the Barry Congregation of Jehovah's Witnesses and became close friends with Mr S and his wife. Mr S was a church "elder”. Mrs B regarded Mr S as her best friend. Mr S began to abuse alcohol and became depressed.

 

Mrs B and her husband supported him and his wife. Mr S became overly affectionate with Mrs B, hugging, kissing, and flirting with her. Mrs B was so concerned about Mr S's behaviour that she suggested to Mrs S that they spoke to Mr S's father, who was also an elder. Without Mr S's knowledge they did so, and Mr S's father explained that Mr S was suffering from depression and needed love and support. He requested that Mr and Mrs B provide Mr S with extra support. It was accepted at trial that, had it not been for Mr S's status as an elder and the instruction from his father, another elder, the friendship would have ended at that time.

 

At a subsequent meeting of the couples, Mr S raped Mrs B. Mr S was convicted in the criminal court. Mrs B brought a claim for damages for personal injury against the Watch Tower and Bible Tract Society of Pennsylvania and the Trustees of the Barry Congregation. She argued that the Defendants were vicariously liable for the rape (via the tort of trespass to the person) committed by Mr S. The Watch Tower Bible and Tract Society of Pennsylvania undertook to satisfy any judgment against the Trustees of the Barry Congregation.

 

The High Court and the Court of Appeal upheld her claim, finding that the Trustees of the Barry Congregation were vicariously liable for the rape. However, the Supreme Court overturned these decisions.

 

Bringing together principles derived from the recent Supreme Court cases of Barclays Bank Plc v Various Claimants and WM Morrison Supermarkets Plc v Various Claimants, the Supreme Court in the instant case reiterated the two-stage test for vicarious liability:

 

a) Is whether the relationship between the parties was one of employment or akin to employment? In non-employment relationships, the Court must meticulously consider whether the facts of the relationship are similar or different to that of employment, for example, is money being exchanged in return for work, how much control does the Defendant have over the Claimant’s work, and is there a hierarchy of seniority between the parties?

b) Was the wrongful conduct so closely connected with acts that the Defendant was authorised to do that it could fairly and properly be regarded as being committed whilst acting in the course of employment or quasi-employment?

 

Looking at the instant case, the Court ruled that Watch Tower Bible and Tract Society of Pennsylvania had a Branch Office in Britain, which was established under the Companies Act 1984 and was registered as a charity. The ecclesiastical Britain Branch Office appointed and removed elders in Britain. At all relevant times, the Barry Congregation was an unincorporated association, of which the Trustees of the Barry Congregation were elders. The Supreme Court determined that the ecclesiastical Britain Branch Office was the body that was most obviously the "quasi-employer". However, as it was a branch of, and therefore acting on behalf of, the Watch Tower Bible and Tract Society of Pennsylvania, the Court concluded that this latter body was the correct defendant for the purposes of vicarious liability. It was referred to by the Supreme Court as the "Jehovah's Witness organisation".

 

Referring to the two-stage test for vicarious liability, the Supreme Court agreed with the Court of Appeal and the High Court that there was a relationship akin to employment between the Jehovah's Witness organisation and Mr S in his role as an elder. Regarding the second stage of the test, the Court had to ask itself “was the rape committed by Mr S so closely connected to the acts the Jehovah's Witness organisation had authorised Mr S to do, that it could be fairly and correctly regarded as committed whilst Mr S was acting in his quasi-employment position as a church elder”? This part of the test was not satisfied for several reasons, including:

 

Finally, the Supreme Court made it clear that simply because the Jehovah's Witness organisation had more money available than Mr B to pay a compensation award, this did not justify expanding the doctrine of vicarious liability beyond its present boundaries.

 

For help or advice on employment law matters contact Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk on 08081668860