Employment Law Cases
Vicarious liability: close connection
A congregation of Jehovah’s Witnesses was not vicariously liable for the rape of a member of its congregation by a former elder. While the relationship between the elder was akin to employment, the rape was not so closely connected with what the elder 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.
In 1984, Mr and Mrs B began attending services of the Barry Congregation. There, they made friends with S, an elder, and his family. The families became close. Towards the end of 1989, S’s behaviour changed. He began abusing alcohol and appeared depressed. He began flirting with Mrs B, including hugging her, holding hands and kissing her. He also confided in her. Concerned, Mrs B spoke to S’s father, Tony, who like his son was an elder. Tony explained that S was suffering from depression and needed love and support. It was accepted at trial that, had it not been for the fact that S was an elder and Mrs B had received this instruction from Tony, their friendship would have come to an end. Mr and Mrs B continued providing S with support. In April 1990, Mr and Mrs B and S and his wife were taking part in door-to-door evangelising. Afterwards they all went to a local pub for lunch, where S and his wife argued. Later the families returned to S’s house. Mrs B decided that she should go to speak to S to try to convince him that he should go to the elders about his depression. A conversation ensued during which S pushed Mrs B to the floor, held her down and raped her.
In 2014, S was convicted of raping Mrs B and seven counts of indecently assaulting two other individuals. He was sentenced to 14 years’ imprisonment. By this time he had been expelled as a Jehovah’s Witness for unrelated conduct and Mrs B had ceased her association with the Jehovah’s Witnesses. Mrs B brought an action for damages for personal injury, including psychiatric harm, against the Watch Tower and Bible Tract Society of Pennsylvania (which is a charitable corporation that supports the worldwide religious activities of the Jehovah’s Witnesses) and the Trustees of the Barry Congregation, alleging that they were vicariously liable for the rape committed by S. The trial judge, upheld by the Court of Appeal, found them vicariously liable for the rape and awarded Mrs B general damages of £62,000. The Trustees of the Barry Congregation appealed to the Supreme Court.
Supreme Court decision
The appeal was allowed.
The Supreme Court began by looking back at many vicarious liability cases which it had considered, ending with WM Morrisons Supermarket plc v Various Claimants. From these it extracted the following 5 principles:
- There are 2 stages in determining vicarious liability: the relationship between the wrongdoer and the defendant and the link between the commission of the wrongdoing and that relationship.
- The test at stage 1 is whether the relationship between the wrongdoer and the defendant is one of employment or is akin to employment.
- The test at stage 2 (the ‘close connection’ test) is whether the wrongful conduct is so closely connected with acts that the wrongdoer was authorised to do that it can fairly and properly be regarded as done by the wrongdoer while acting in the course of his or her employment or quasi-employment.
- These tests invoke legal principles that in the vast majority of cases can be applied without considering the underlying policy justification for vicarious liability. But, in difficult cases, it can be a useful final check on the justice of the outcome to stand back and consider whether a provisional outcome is consistent with the underlying policy.
- The same two stages, and the same two tests, apply to cases of sexual abuse as they do to other cases on vicarious liability.
Applying these principles to the facts of this case, the Supreme Court held that the High Court and Court had correctly interpreted the stage 1 test: S was appointed under a hierarchical structure as an elder of the church and carried out work assigned by it to him to further its objectives.
However both the High Court and Court of Appeal had gone awry in applying the ‘close connection’ test, essentially by giving prominence to matters that should just have been considered as background as they didn’t answer the close connection question. Applying the correct test, the court held that the stage 2 test was not satisfied in this case for several reasons, among them the following:
- The rape was not committed while S was carrying out any activities as an elder.
- The primary reason the offence took place was that 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 S never took off his ‘metaphorical uniform’ when dealing with members of the Barry Congregation.
- Although S’s role as an elder was a ‘but for’ cause of Mrs B’s continued friendship and hence of her being with him when the offence 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.
As a final check, consideration of the policy that underpinned vicarious liability confirmed that there was no convincing justification for the Jehovah’s Witnesses to bear the cost or risk of the rape committed by S. The fact that it had deeper pockets was not a justification for extending vicarious liability beyond its principled boundaries.
Every case on vicarious liability is decided on its facts by applying these principles. Whilst it had been thought that the case law was moving more towards finding in favour of the wronged party, this case is clear in the application of this two-stage test, even if the outcome is injustice for the wronged party.