“Tailoring” the Close Connection Test for Sexual Abuse Victims: Vicarious Liability in the Court of Appeal

by Paula Giliker, Professor of Comparative Law, University of Bristol Law School.

The doctrine of vicarious liability renders a defendant strictly liable for the torts of another (X) where:

• Stage One: the defendant is in a relationship with X which makes it fair and just for the law to make the defendant pay for the tortious conduct of X; and
• Stage Two: there is a close connection between this relationship and X’s wrongdoing.

On 1 April 2020, the UK Supreme Court delivered two significant decisions on vicarious liability.  These set out clear guidance on the application of Stage One (Various Claimants v Barclays Bank Plc [2020] UKSC 13) and Stage Two (Various Claimants v Wm Morrison Supermarkets Plc [2020] UKSC 12) of the test. In delivering two unanimous decisions on the same day, the Court clearly sought to respond to uncertainty in the law, demonstrated not least by eight appeals to the House of Lords/Supreme Court between 2001 and 2020, three Privy Council decisions over the same period, and numerous Court of Appeal and lower court judgments on this doctrine. The key question following these judgments was whether they would stop the flood of appeals. Would Barclays Bank and Morrison finally provide greater clarity on the operation of vicarious liability for courts and litigants alike?

The first Court of Appeal ruling since Barclays Bank/Morrison would suggest not. On 15 March 2021, a unanimous Court of Appeal in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356 dismissed the defendants’ appeal against vicarious liability. The decision is important for a number of reasons. First, it was an appeal from a pre-Barclays and Morrison decision and so the Court of Appeal inevitably had to consider the impact of these cases. Secondly, the appeal related to both stages of the vicarious liability test, providing Court of Appeal authority on both points. Thirdly, it was a sexual abuse case.  In Morrison, the Court had accepted (at [23]) that the Stage Two close connection test had been applied differently in cases concerned with the sexual abuse of children, adding at [36] that, for sexual abuse cases, “a more tailored version of the close connection test is applied”.  BXB therefore responds to the obvious question raised by Morrison: how should this “tailored” close connection test be applied post-Morrison?

 

The facts of BXB

Mrs B and her husband were Jehovah’s Witnesses. Mrs B was raped by one of the elders (M), a senior member of their congregation. The facts are complicated by the fact that Mrs B and her husband were friends with M and his wife.  The friendship had continued despite previous incidents in which M had behaved inappropriately towards Mrs B.  Indeed, Mr and Mrs B had been encouraged to offer support for M by M’s father (a senior elder) on the basis that M was suffering from depression. On the day in question, after a morning engaged in religious activity, the families had lunched together and returned to the home of M and his wife with their respective children. It was while trying to speak to M alone about his depression that Mrs B was raped. It was argued that but for M and his father’s position as elders, Mr and Mrs B would probably have ended their friendship with M by the time of the rape and the rape would not have occurred.

The case raised two questions: (1) was M as an elder to the congregation in a relationship with the defendants giving rise to vicarious liability, and (the more difficult question), (2) was M’s rape of Mrs B closely connected to his “employment” as an elder?

 

The Court of Appeal’s decision

• Finding the requisite relationship: Employment or “akin to employment”?

While the relationship giving rise to vicarious liability is usually that of employer/employee, it does extend to relationships “akin” to employment.  M, as an elder, was a volunteer (and so not an employee in a strict sense).  The question was whether he was therefore “akin” to an employee of the Jehovah’s Witnesses organisation in that he was integrated into the organisational structure of that enterprise. In A v Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB), the court had found the Jehovah’s Witnesses organisation responsible for the sexual assault of a child congregation member by a ministerial servant.   In that case, the court found that while being a Jehovah’s Witness is a way of life for all members extending beyond attendance at services, this is particularly so for those who become elders and ministerial servants. Given that elders (whose primary role is to guide and protect the congregation) are spiritual leaders superior to ministerial servants, it is unsurprising that the Court of Appeal found the elder’s relationship within the organisation to be integral to its “business” activities and for its benefit. Parallels were drawn with priests in the Catholic Church ([77]).

The Court went further, however, to consider policy ([72]). This is of interest in that in Barclays Bank, Lady Hale (giving judgment) had emphasised that the question of whether the wrongdoer was part of the business of the employer or working on his own behalf would be determined by examining the details of the parties’ relationship. Policy would only be relevant in doubtful cases where it was unclear whether the relationship was sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability ([2020] UKSC 13, [27]). However, the Court of Appeal chose to follow the guidance of Lord Reed in Cox v Ministry of Justice ([2016] UKSC 10, [24]) (a pre-Barclays case) in which his Lordship had asked not only whether the activities were an integral part of the defendant’s business activities, but also the policy question whether the commission of the wrongful act was a risk created by the defendant in assigning those activities to the wrongdoer.   Lady Hale’s intention in Barclays Bank was that this second question should be confined to doubtful cases. Was BXB a doubtful case? Not according to Males L.J. whose judgment focused on what he regarded as the more contentious Stage Two test. Why, then, was policy seen as relevant in BXB?  The answer has to lie on the fact that this was a sexual abuse case, regarded (as seen above) as a special category in Morrison.  Although Morrison dealt only with Stage Two, the Court used a discussion of risk-based reasoning to justify its reasoning on Stage One and remove any doubts that might exist.

BXB therefore suggests that policy will continue to be regarded as relevant to the operation of the “akin to employment” test in sexual abuse cases, irrespective of any doubts as to the nature of the relationship. Is this consistent with Lady Hale in Barclays Bank?  You may have your doubts …

• A close connection between the parties’ relationship and the wrongdoing

It is in relation to the Stage Two close connection test, however, that BXB takes a more radical turn.  The Court of Appeal embraced wholeheartedly the idea of a “tailored” test for abuse cases, rejecting any distinction between child and adult sexual abuse.[1] Nicola Davies L.J. (giving the main judgment) argued that “in cases of this kind, the test is more open textured and requires an analysis of all aspects of the relationship between the tort and the abuser’s status”: [83].  In so doing, the Court adopted two key arguments:

• Sexual abuse cases should be regarded as distinct in vicarious liability. It is noticeable that the Court focused on legal authority primarily concerned with sexual abuse e.g. Catholic Child Welfare Society v Various Claimants [2012] UKSC 56, Maga v Archbishop of Birmingham [2010] EWCA Civ 256 and E/JGE v English Province of Our Lady of Charity [2012] EWCA Civ 938.
• Morrison requires the application of a different close connection test in cases concerned with sexual abuse which reflects the fact that such cases often involve relationships of power and authority giving rise to a considerable risk of wrongdoing.

This was important in BXB. Without the adoption of a broader test, Stage Two would not have been satisfied in that it was accepted that the rape did not occur while M was performing any sort of religious duty. It was rather a case of abuse of trust of a fellow congregation member and friend in circumstances where the close religious community, of which they were both part, made ending their friendship difficult.

So how did the Court of Appeal find an unprovoked sexual attack to be in the course of M’s employment as an elder? The answer is two-fold – the Court adopted a broader (“open-textured”) test that examined all aspects of the parties’ relationship and relied on policy grounds, notably that the defendants had created and/or significantly enhanced the risk of sexual abuse by an elder. The Court also fixed on an obiter comment of Lord Reed in Morrison — “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”: [23] (emphasis added).  What was given as an example is taken as the basis for a new test:

Contained within the tailored test in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant … On the facts of this claim, 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 [members of] the congregation: (Nicola Davies L.J, [84]).

Given then that the authority conferred on M as an elder encouraged Mrs B to trust him and not break off their friendship, coupled with instructions from M’s father (also an elder) to continue their friendship, and the fact that the authority of the elders was found to extend to all aspects of the lives of congregation members, the Court found M’s role and authority within the organisation and the power it engendered made it just and reasonable for the defendants to be held vicariously liable for his act in raping Mrs B.

This is a generous interpretation. I will confine myself to three comments. The first (and most obvious) is that this decision seems to fly in the face of the more restrictive test in Morrison where the Court emphasised that the test was one of a “close” (not “sufficient”) connection to the acts the employee was authorised to do. In distinguishing sexual abuse claims, however, there was nothing to stop the Court of Appeal taking this line, although it appears to conflict with the underlying desire of the Court in Morrison to provide greater certainty in the law. Secondly, the “conferral of authority” test is taken broadly, consisting not only of the actual tasks demanded of the elder but extending to the impact of actions undertaken by other elders in the congregation (here not reprimanding M for known sexual improprieties and instructing Mrs B as a female congregation member to act as his friend and confidante) which had increased the risk of abuse. This renders the factual matrix very broad indeed.  Finally, such an “open-textured” test that relies so heavily on the facts of each particular case is not a test conducive to certainty or predictability.

Fundamentally, the difficulty facing the court in BXB was that, on the facts, religion and friendship were intertwined in such a way to render it very difficult to say that the attack occurred solely because M was abusing his position as an elder.  While this no doubt played a part, what we are dealing with is sexual abuse in a social situation between two members of a religious sect. What seems to tip the difference, however, is the Court’s finding that the religious organisation in question enhanced the risk of abuse both by ignoring danger signs and placing Mrs B in a potentially dangerous situation.  It is important to remember at this stage that this was not a case where liability was being sought for systemic negligence, nor even on the basis of vicarious liability for the arguable negligence of M’s father in putting Mrs B in a situation where she was dealing with a violent man who had already behaved towards her in a sexually inappropriate way. Nevertheless, in adopting an approach based on risk, the Court advocated an approach that takes us to the very limits of the “close” connection test where the scope of employment will be determined not simply by the job itself, but the authority and power the perpetrator is perceived to possess.

 

Conclusion

BXB represents yet another vicarious liability case that raises more questions than it answers.  In particular, by creating, at Stage Two, a special “close” connection test for sexual abuse based on conferral of authority, the Court of Appeal has created uncertainty in this area of law.  Sexual abuse of children and adults is abhorrent. The question remains whether it is for the courts, and not Parliament, to create enclaves of liability to deal specifically with this social problem.  BXB leaves the law in need of clarification and facing the prospect of yet another trip to the Supreme Court.

[1] Males L.J. acknowledged, however, that application of this test will need to take account of the differences between children and adults in that children will typically lack the maturity and independence of adults: [96].