The common law principle of ‘vicarious liability’ imposes a strict, no-fault, liability in certain situations for wrongs committed by another person. When asked to impose vicarious liability, the courts impose a two-stage test:
- Stage one: Is the relationship between the wrongdoer and the person against whom vicarious liability is claimed either one of employment, or one that is ‘akin to employment’ (but not of independent contractor and client)?
- Stage two: Is the wrongful conduct so closely connected with acts that the wrongdoer was authorised to do that they can fairly and properly be regarded as being done in the course of that employment / relationship akin to employment?
The Supreme Court has recently considered whether, applying these tests, a religious organisation could be held vicariously liable for a rape committed by one of its religious elders.
Mr and Mrs B were active members of the congregation. Over time, their family developed a close friendship with the family of a religious elder (Mr S). After many years of friendship, the couple noticed that Mr S’s behaviour had changed. Mrs B spoke to his father (T), who was also religious elder, about this change in Mr S’s behaviour and T told her that Mr S needed her continued love and support. Mr and Mrs B did not end the friendship between the two families because they considered this to be an ‘instruction’ from an elder. Mr S went on to rape Mrs B when the couple were visiting his family home. After Mr S was convicted of raping her, Mrs B successfully brought a personal injury claim – the Court held that the religious organisation was vicariously liable for Mr S’s rape of Mrs B. The Court of Appeal later upheld that decision. The Supreme Court unanimously upheld the religious organisation’s appeal, and took the opportunity to clarify the two-stage test for vicarious liability set out above.
The Supreme Court held that, where the relationship is alleged to be one ‘akin to’ employment:
- Stage one: requires the court to carefully consider which features of the relationship are similar to, or different from, a contract of employment. Further noting that it is not possible to claim that a relationship is akin to employment if the wrongdoer is genuinely a self-employed contractor.
- Stage two: requires the court to carefully consider the link between the wrongful conduct and the wrongdoer’s authorised activities.
- Final check: in difficult cases, 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 of the vicarious liability doctrine.
The Supreme Court went on to apply these principles to this case:
- Stage one: the relationship was ‘akin to employment’ – Mr S was an elder carrying out work on behalf of and assigned to him by the organisation; was performing duties which were in furtherance of, and integral to, the organisation’s aims and objectives; there was an appointments process to be made an elder; there was a process by which an elder could be removed; and there was a hierarchical structure into which the role of an elder fitted.
- Stage two: the lower courts had failed in their consideration of whether the wrongful conduct was so closely connected with acts that Mr S was authorised to do that they could fairly and properly be regarded as being done in the course of his relationship akin to employment. The rape had not been committed while Mr S was carrying out any activities as an elder; the primary reason the offence took place was that Mr S was abusing his position as a close friend of Mrs B when she was trying to help him; it was unrealistic to suggest that Mr S never took off his metaphorical ‘elder’ uniform off when dealing with members of the organisation’s congregation; although his role as an elder was a ‘but for’ cause of Mrs B’s continued friendship and hence of her being with Mr S when the rape occurred, this was insufficient to satisfy the close connection test; the rape was not an objectively obvious progression from what had gone on before but was rather a shocking one-off attack; and other factors, such as the role played by T, and the failure of the organisation to condemn Mr S’s inappropriate kissing of members of the congregation when welcoming them, were not relevant except as background.
- Final check: there was no convincing justification for the religious organisation to bear the cost or risk of the rape committed by Mr S. The fact that it has deeper pockets is not a justification for extending vicarious liability beyond its principled boundaries.
This article references Trustees of the Barry Congregation of Jehovah’s Witnesses -v- BXB [2023] UKSC 15. For further information and support, please get in touch.
For further information, please contact:
Emma Ahmed, Hill Dickinson
emma.ahmed@hilldickinson.com
