A Jehovah’s Witness elder raped an adult female congregation member at his home. The Supreme Court allowed the congregation trustees’ appeal, holding the organisation was not vicariously liable because the rape was not sufficiently closely connected with the elder’s authorised activities to satisfy the ‘close connection’ test at stage 2.
Background
The respondent, Mrs B, and her husband were members of the Barry Congregation of Jehovah’s Witnesses from 1984. They became close friends with Mark Sewell and his wife Mary. Mark Sewell was a ministerial servant and later became an elder in 1989. The families socialised extensively together. When Sewell began exhibiting signs of depression and alcohol abuse, Mrs B raised concerns with another elder, Tony Sewell (Mark’s father), who encouraged the couple to continue supporting Mark. On 30 April 1990, following a day involving door-to-door evangelising and a pub lunch during which Sewell argued with his wife, Mrs B went to speak to Sewell in a back room at his home. He pushed her to the floor and raped her. He was subsequently convicted in 2014 of the rape and other sexual offences and sentenced to 14 years’ imprisonment.
Mrs B suffered depression and post-traumatic stress disorder. She 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, alleging they were vicariously liable for the rape committed by Mark Sewell in his capacity as an elder.
The Issue(s)
The central question was whether the defendants were vicariously liable for the rape committed by Mark Sewell. This required the Supreme Court to address the two-stage test for vicarious liability:
Stage 1
Whether the relationship between the Jehovah’s Witness organisation and Mark Sewell, in his role as elder, was one of employment or akin to employment.
Stage 2
Whether the wrongful conduct (the rape) was so closely connected with acts that Sewell was authorised to do that it could fairly and properly be regarded as committed by him while acting in the course of his quasi-employment — the ‘close connection’ test.
The Court’s Reasoning
Summary of Modern Vicarious Liability Law
Lord Burrows, delivering the unanimous judgment, undertook a comprehensive review of the modern law on vicarious liability as developed through cases including Lister v Hesley Hall Ltd, Various Claimants v Catholic Child Welfare Society (Christian Brothers), Cox v Ministry of Justice, Mohamud v Wm Morrison Supermarkets plc, Armes v Nottinghamshire County Council, Various Claimants v Barclays Bank plc, and Various Claimants v Wm Morrison Supermarkets plc. He distilled the applicable principles into a clear framework.
On the stage 2 test, Lord Burrows confirmed:
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.
He emphasised that ‘but for’ causation alone is insufficient to satisfy this test, and that the same tests apply to sexual abuse cases as to other vicarious liability cases:
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.
Lord Burrows also stressed, following Barclays Bank, that policy justifications for vicarious liability should not be elided with the legal criteria for its application:
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.
Stage 1: Relationship Akin to Employment — Satisfied
The Supreme Court agreed with the lower courts that stage 1 was satisfied. Lord Burrows identified the important features: Sewell was carrying out work assigned by the organisation, his duties were in furtherance of and integral to its aims, there was a formal appointments and removal process for elders, and there was a hierarchical structure. He drew a parallel with Christian Brothers:
In both cases, there was a hierarchical structure, the tortfeasor was directed to undertake various activities, he was doing so in furtherance of the objectives of the organisation, and he was required to conduct himself within the rules of the organisation.
However, Lord Burrows criticised the lower courts for confusing the criteria for stage 1 with the underlying policy justification by speaking of the ‘creation of risk’:
The creation of the risk of rape should not have been included within the criteria for deciding whether the relationship was akin to employment.
Stage 2: Close Connection Test — Not Satisfied
The Supreme Court departed from the lower courts on stage 2. Lord Burrows identified multiple errors in the reasoning below, including the failure to apply the correct Dubai Aluminium/Morrison test, reliance on irrelevant factors, and the substitution by Males LJ of a different test focused on ‘abuse of authority’.
Lord Burrows gave six reasons why the close connection test was not satisfied:
First, the rape was not committed while Sewell was carrying out any activities as an elder. He was at his own home and not engaged in any work connected with his role:
He was not conducting a bible class, he was not evangelising or giving pastoral care, he was not on premises of the Jehovah’s Witnesses and the incident had nothing to do with any service or worship of the Jehovah Witnesses.
Second, at the time of the rape, Sewell was not exercising control over Mrs B because of his position as an elder:
The driving force behind their being together in the room at the time of the rape was their close personal friendship not Mark Sewell’s role as an elder.
Third, the submission that Sewell never removed his ‘metaphorical uniform’ as an elder was rejected as unrealistic.
Fourth, while ‘but for’ causation was accepted — Sewell’s role as elder was a but-for cause of Mrs B’s continued friendship — this was insufficient:
‘but for’ causation is insufficient to satisfy the close connection test.
Fifth, the rape was not analogous to the grooming of a child by a person in authority but was rather a shocking one-off violent attack, and prior events owed more to their close friendship than to Sewell’s role as elder.
Sixth, the role of Tony Sewell and the failure to condemn inappropriate kissing were irrelevant except as background, because the claim was not for vicarious liability for any tort of Tony Sewell or for negligence.
Lord Burrows concluded:
The rape was not so closely connected with acts that Mark Sewell was authorised to do that it can fairly and properly be regarded as committed by him while acting in the course of his quasi-employment as an elder.
Policy Cross-Check
As a final check, Lord Burrows considered whether the underlying policy of enterprise liability or risk justified the result and concluded it did not:
Clearly the Jehovah’s Witness organisation has deeper pockets than Mark Sewell. But that is not a justification for extending vicarious liability beyond its principled boundaries.
Practical Significance
This decision is of major importance in clarifying the boundaries of vicarious liability, particularly in sexual abuse cases involving religious or quasi-religious organisations. The Supreme Court authoritatively restated the two-stage test for vicarious liability and confirmed that the same tests apply to sexual abuse cases as to all other vicarious liability claims. The judgment makes clear that ‘but for’ causation alone is insufficient at stage 2, and that courts must not conflate the policy underpinnings of vicarious liability with the legal criteria for its application. The case establishes that where a tort is committed outside the performance of any duties associated with the tortfeasor’s role, and where the primary reason for proximity between tortfeasor and victim is personal friendship rather than the exercise of organisational authority, the close connection test will not be satisfied — even where the tortfeasor holds a position of religious authority within the organisation. The decision also provides an important consolidated summary of the modern law on vicarious liability as it stands following Barclays Bank and Morrison.
Verdict: The Supreme Court unanimously allowed the appeal. The Jehovah’s Witness organisation was not vicariously liable for the rape committed by elder Mark Sewell. While stage 1 of the vicarious liability test (relationship akin to employment) was satisfied, stage 2 (the close connection test) was not, because the rape was not sufficiently closely connected with acts Sewell was authorised to do in his role as elder.
Source: Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15
