BXB: Vicarious liability, sexual abuse and the Canadian Perspective
Articles, News | Wed 3rd May, 2023
- In Mohamud v Morrisons Supermarkets (2016) AC 677, Lord Dyson MR observed that:
“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”
- Nonetheless, since Mohamud was decided in 2016, that quest has continued in earnest. Indeed, the issue has been before the Supreme Court on three separate occasions. In the latest case, Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB (2023) UKSC 15, handed down on 26th April 2023, their Lordships sought to bring clarity to the application of the law in the particular context of sexual abuse.
- The facts of the case were unusual in that, unlike many other sexual abuse cases in this area of the law, the Claimant victim (Mrs B) was a 29-year-old adult at the relevant time. In 1984 she and her husband began attending the religious services of the Barry congregation of the Jehovah’s witnesses. They quickly made friends with another couple, Mary and Mark Sewell. Mark Sewell, who ran a self-employed cleaning business, was, by 1989, an ‘elder’ in the congregation. Both couples had children of similar age who would socialise with one another. The families became close, went on holidays together and spent time at each other’s houses. Mrs B considered Mark Sewell to be her best friend.
- In late 1989 Mark and Mary Sewell’s relationship came under strain. He became depressed and drank heavily. Mrs B noticed that he would confide in her and that his behaviour was increasingly flirtatious. Mr and Mrs B agreed to speak with Mark Sewell’s father – also an elder – about his behaviour. He asked them to support his son and help him through his problems. The first instance judge (Chamberlain J) found as a fact (unchallenged on appeal) that had it not been for the fact that Mrs B had received what she perceived as an instruction from an elder to help Mark Sewell, their friendship would have come to an end before the sexual abuse occurred.
- In April 1990, following a morning of door-to-door evangelising together, both couples went to a local pub for lunch. Mark and Mary Sewell had an argument. Mark Sewell left the pub and confided to Mr B outside that he wanted to divorce his wife. When Mr B explained that that was not possible under the principles followed by Jehovah’s Witnesses because divorce was only permitted on grounds of adultery, Mr Sewell said that he would convince his wife that the ground was made out. Later that afternoon both couples returned to the Sewell house. Mark Sewell was alone in a back room. Mrs B went to see if he was ok, at which point he pushed her to the ground and raped her.
- The claimant established vicarious liability at first instance, a decision unanimously upheld by the Court of Appeal. The Defendant appealed to the Supreme Court, which unanimously upheld the appeal. Lord Burrows give the single judgment with which all the other judges agreed.
- It is settled law that there are two stages in the inquiry into vicarious liability. Stage 1 concerns the relationship between the Defendant and tortfeasor. Stage 2 looks at the connection between the relationship and the wrongdoing by the tortfeasor.
- Although the Defendant challenged the lower courts’ analyses of both stages, the Supreme Court had no hesitation in upholding the decision that the relationship between a Jehovah’s Witness elder and the organisation was one of ‘quasi-employment’. The work was unpaid but this was not (so the Court held) in anyway a decisive favour. The important features were that:
a. As an elder, Mark Sewell was carrying out work on behalf of and assigned to him by, the organisation;
b. He was performing duties in furtherance of and integral to the aims and objectives of the organisation;
c. There was a process by which elders were appointed and removed;
d. There was a hierarchal structure into which the role of the elder fitted.
- An interesting feature of the case is that the Claimant had brought the claim against both the Trustees of the Barry Congregation, apparently as representatives of an unincorporated association, and against the Watch Tower and Bible Tract Society of Pennsylvania. Since the latter had given an express undertaking to indemnify the former in respect of any judgment, Chamberlain J did not think it was necessary to undertake any further inquiry into which organisation was the correct Defendant. However, the Supreme Court noted that it was the Britain Branch of the Watch Tower and Bible Tract Society of Pennsylvania which appointed and removed elders in Britain. The power to appoint and remove was given, through a power of attorney, to an individual member of the Britain Branch Committee. On this basis, the Supreme Court held that the correct Defendant, and the ‘quasi-employer’ in the context of the Stage 1 test, was the Branch Office. However, “as at the relevant time that body was a branch of, and therefore acting on behalf of, the Watch Tower and Bible Tract Society of Pennsylvania, the latter was a correct defendant”
- The focus on the power to appoint and remove members as a key metric of whether an organisation is the ‘quasi-employer’ has potential implications in a range of cases concerning the vicarious liability of charitable bodies. This is particularly so in respect of religious organisations, where there are often a number of institutions, groupings, boards and committees which play some role in the functioning of the organisation at local and national level. The Supreme Court’s judgment on this issue, even if only obiter, is likely to provide welcome clarity in future cases.
- Stage 2 was the main battleground for argument in BXB.
- In Various Claimants v Morrison Supermarkets (2020) AC 989, the Supreme Court held that the correct modern formulation of the test at stage 2 was that:
“the wrongful conduct must be so closely connected with acts the employee was authorised to do that … it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment”.
- However, there was some suggestion in earlier decisions of the Court, and in Morrisons itself, that a different approach might be warranted in cases of sexual abuse. Lord Reed had observed that “the close connection test has been applied differently in cases concerned with the sexual abuse of children, which cannot be regarded as something done by the employee while acting in the ordinary course of his employment. Instead, the courts have emphasised the importance of criteria that are particularly relevant to that form of wrongdoing, such as the employer’s conferral of authority on the employee over the victims, which he has abused”.
- This dicta had led to attempts to argue that any case involving not just direct sexual abuse, but even a breach of safeguarding obligations concerning vulnerable persons (especially children), warranted a more ‘tailored approach’. An example is Ali v Luton Borough Council (2022) EWHC 132 (QB) in which the High Court rejected the Claimant’s argument that a different approach should be taken where a council employee had unlawfully passed on information about children from a social services file to which she had access by virtue of her employment.
- At first instance in BXB, Chamberlain J, who was giving judgment before the Supreme Court decision in Morrison, framed the test as being whether “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”. He focused on a range of factors including:
a. Mark Sewell’s position as a ministerial servant was an important part of the reason why Mr and Mrs B started associating with him;
b. But for Mark and Tony Sewell’s status as elders, Mr and Mrs B would probably have ended their friendship before the rape occurred;
c. The Defendants had increased the risk of sexual abuse by creating conditions (including Tony Sewell’s instruction that Mrs B continue to assist his Son) in which the two might be alone;
d. The rape took place in circumstances closely connected to the carrying out by Mrs B and Mark Sewell of their religious duties (the evangelising)
e. One of the reasons for the rape was Mark Sewell’s belief that an act of adultery was necessary to provide scriptural grounds for divorce.
- In the Court of Appeal, Nichola Davies LJ stated that on the facts “what is relevant for the purpose of the close connection test is the conferral of authority by the Jehovah’s Witness organisation upon its elders, coupled with the opportunity for physical proximity as between an elder and publishers in the congregation.” She accepted that factors (a), (b) and (c) identified by Chamberlain J were of particular relevance.
- Males LJ, concurring, held that the two essential issues were whether Mark Sewell’s status as an elder placed him in a position of power or authority over Mrs B and whether the rape was an abuse of that position as distinct from being unconnected with it. He identified four relevant factors which supported a finding of vicarious liability, namely (a) ordinary members of the congregation such as Mrs B were required to be obedient and submissive to elders; (b) elders knew of and permitted Mark Sewell to in appropriately kiss members on the lips when welcoming them; (c) Mrs B had raised concerns about Mark Sewell with his father, an elder, and been advised to help him; and (d) but for that instruction/advise, the friendship would have ended.
- In reversing the decision of the Court of appeal, the Supreme Court observed that one could detect behind the two most recent decisions (Various Claimant v Barclays Bank (2020) AC 973 and Morrison) “an anxiety that the scope of vicarious liability was being widened too far”. Lord Burrows emphasised that the modern test to be applied at stage 2, set out in Morrison (above, paragraph 12) did not require any tailoring or special rules for sexual abuse cases. The only adjustment required, other than recognising that ‘employment’ now extends to ‘quasi-employment’ was to delete the word ‘ordinary’ before ‘course of employment’ because it was superfluous and potentially misleading, especially in sexual abuse cases. There must always be a careful inquiry into the facts that link the wrongful conduct and the tortfeasor’s authorised activities. Lord Burrows observed that the core policy behind vicarious liability was “the idea…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 risk of the wrong committed by that person in the course of those activities”. However, he held that the test itself should ordinarily be capable of being applied without having to invoke any of the policy principles which underly it.
- Turning to the facts of BXB, Lord Burrows held that both Chamberlain J and the Court of Appeal had erred in relying on the various factors identified above. ‘But for’ causation was not correct test and the other factors were of little relevance other than by way of factual background. They had insufficient link to the commission of the rape itself.
- Applying the test afresh to stage 2, the Supreme Court held that the claimant failed to satisfy it because:
a. The rape was committed in a private setting – Mark Sewell’s own home – and not at a time when he had been engaged in performing any kind of work connected with his role as an elder such as a bible class. Lord Burrows remarked that: “The lack of direct connection to the role assigned to him as an elder makes these facts significantly different from the institutional sex abuse cases where, eg, as part of their jobs the warden was on the institutional premises looking after the children in Lister or the Brothers were living in the same institution as their victims in Christian Brothers. It is also significantly different from the facts of A v Trustees of the Watchtower Bible and Tract Society 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”.
b. Mark Sewell was not exercising control over the Claimant, again in contrast to the child abuse cases. In fact, she had been offering to provide him with emotional support at the time, because of their friendship.
c. Mark Sewell was not, as the Claimant had alleged, wearing his ‘metaphorical uniform’ at the time. This was an unrealistic proposition since it would produce potentially absurd results such as vicarious liability for driving Mrs B and her children to the airport on one of their holidays together.
d. The was no equivalence with 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 of what had gone before’ but a ‘shocking one-off attack’.
e. Any other events, such as the alleged failure of the organisation to respond to Mark Sewell’s inappropriate behaviour at the congregation might be relevant to a claim in negligence but not to the stage 2 test for vicarious liability.
- This is plainly a sensible decision on its facts. It also brings some welcome clarity in curbing any further argument that a different test, per se, should apply to sexual abuse cases. Nonetheless, as Lord Burrows recognised, the effect of removing the word ‘ordinary’ from the concept of the ‘course of employment’ may still lead to vicarious liability in those cases where the abuse has occurred at the end of a gradual process of grooming which started within the ordinary course of employment or quasi-employment, especially where that employment involved a position of authority or responsibility over the victim.
- Perhaps the more interesting (but of course, deeply unpleasant) question is whether, on broadly the same facts as BXB, the result would have been different if the Claimant had been a child. If, for example, Mark Sewell had sexually abused one of family’s children in the home. It is perhaps instructive to return to one of the seminal Canadian Supreme Court decisions in this area (Jacobi v Griffiths (1999) 174 DLR 71 and Bazley v Curry (1999) 174 DLR 45) which, in the House of Lords in Lister v Hesley Hall (2002) 1 AC 215, Lord Steyn stated should be “the starting point”… “wherever such problems are considered in future in the common law world”.
- In the lesser-known Judgment in Jacobi, the Defendant was a Boys’ and Girls’ Club, a non-profit organization. The tortfeasor (G) was employed as Program Director. The Club required him to supervise volunteer staff and organize recreational activities and the occasional outing. He was also encouraged to form friendships and a positive rapport with the children at the Club. The Claimants gave uncontroverted evidence that all of their friends and activities centred on the Club. One of claimants, a 10 year old boy, was invited into G’s home outside working hours and engaged in conversation of a sexual nature that devolved into an assault. The other claimant, a girl of a similar age, was assaulted after G had worked with her and encouraged her to develop a leadership role. Again, the assault occurred outside the club and outside its operating hours. By a majority, the Court held that the Club was not vicariously liable. The lengthy judgments of the majority judges repay close reading, but the following passage in the judgment of Binnie J seems to capture the idea that even in the case of children, there will not always be an uninterrupted grooming process which leads inevitably to vicarious liability, especially where the tortfeasor’s ‘course of employment’ did not involve strong elements of intimacy, trust or authority and the final assault has occurred in a private setting:
80. The key to this case, in my view, is that the Club’s “enterprise” was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The opportunity that the Club afforded Griffiths to abuse whatever power he may have had was slight. The sexual abuse only became possible when Griffiths managed to subvert the public nature of the activities. The success of his agenda of personal gratification, which ultimately progressed to sex acts, depended on his success in isolating the victims from the group. The progress from the Club’s program to the sexual assaults was a chain with multiple links, none of which could be characterized as an inevitable or natural “outgrowth” of its predecessor:
(1) The Club provided Griffiths with the opportunity to work with children.
(2) While it was undoubtedly part of Griffiths’ job to develop a positive rapport with the children, the relationship envisaged by the Club had no element of intimacy comparable to the situation in Children’s Foundation.
(3) While Griffiths might come into occasional physical contact with children by reason of his job, e.g., steadying a child on a piece of gym equipment, the authorized “touching” had no more to do with parenting, nurture or intimacy than could be said of a normal adult reaching out to steady a child who, e.g., tripped over a carpet.
(4) Griffiths enticed each child to his home to cultivate a one-on-one relationship. The Club activities did not require the Program Director to be alone with a child off Club premises and outside Club hours. Such a practice was explicitly prohibited after 1988.
(5) Griffiths established his own bait of home attractions, such as video games, that had nothing to do with Club activities. It was not part of his job to entertain children at home after hours.
(6) Unlike the situation in Children’s Foundation, the appellants’ mother was a parental authority interposed between the assailant and his victims. She gave permission to the children to go to Griffiths’ home. No doubt, knowing of Griffiths’ job at the Club, she did not regard him as a stranger or as a threat. Nevertheless, it must have been evident to a reasonably cautious parent that Griffiths’ home entertainment was not part of the Club’s program.
(7) Once the children were drawn into his home-based activities, Griffiths gradually increased the level of intimacy, initially with Randy and subsequently with Jody, in terms of banter and sexually suggestive talk. This was not only unauthorized, it was antithetical to the moral values promoted by the Club.
(8) Eventually, when Griffiths saw his chance, he committed the assaults.
- Perhaps an even more stark question thrown up by the decision in BXB is whether it sheds any further light on the example posed by Lord Hobhouse in Lister regarding employees who do not have any direct child-care responsibilities in institutional settings:
To take one of the judge’s hypothetical examples, say, there might have been a groundsman at Axeholme House and he might have been the abusing party; Mr Grain might have discovered what had happened and the distress it had caused to the boy but did nothing about it and did not report the incident to the defendants. The defendants might not be liable for what the groundsman did; he was employed to look after the grounds, not to have anything to do with the boys”
- Again, the Canadian Supreme Court has had occasion to tackle a similar question in EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia (2005) 3 SCR 45. The claimant, who attended a residential school, was sexually assaulted by an employee (Saxey) who worked as a baker, boat driver and odd-job man. He lived on school grounds but had no formal responsibilities for looking after the children. The Court found that there was no vicarious liability:
“while the residential school setting and the nature of the discipline at the school clearly contributed to the vulnerability of the children to abuse, there was no finding of a “strong connection” between the particulars of Saxey’s employment and the outrages he committed by luring the appellant to his private quarters as is required by our jurisprudence. The fact that Saxey was permitted on occasion to ask children to do chores, and that children were inevitably in occasional contact with him, is not enough. The employment of Saxey as a baker, boat driver and odd-job man did not put him in a position of power, trust or intimacy with respect to the children. His job did not include regular or private contact with the children. He was not encouraged or required to develop any sort of personal relationship with the children. His role did not include supervising any intimate activities”
- It remains to be seen whether the decision in BXB marks any clear turning point in this area of the law. There seems little doubt there the Supreme Court intended to prevent any further widening of the scope of the doctrine, but it is clear that there will no substitute for a very careful analysis of the facts in every case.