Barry Congregation of Jehovah's Witnesses v BXB

The claim was brought by the claimant against a Roman Catholic archdiocese alleging that he had been sexually abused as a child by a priest who lived and worked in the archdiocese. The claimant was not a Roman Catholic. He had met the priest, who had special responsibility for youth work, through church discos which were open to all young people, and had done jobs for the priest, including in the presbytery where the priest lived and where some of the alleged abuse had taken place. The Court of Appeal held that although the archdiocese had no direct responsibility for the claimant as a nonCatholic, a number of factors taken together established a sufficiently close connection between the priest’s employment as a priest at the church and the abuse which he had inflicted on the claimant, to render it fair and just to impose vicarious liability for the abuse on the archdiocese as the priest’s employer.

At [44] to [51] Lord Neuberger MR (as he then was) identified factors relevant to the issue of close connection. They included the fact that the priest held a special role of trust and responsibility and a degree of moral authority; the claimant’s youth and the priest’s special responsibility for youth work amongst Catholics and non-Catholics; the development of the priest’s relationship with the claimant through his youth work at the church, which led to the claimant’s work for the priest both on and off church premises and the priest’s opportunity to spend time alone with the claimant in the presbytery without supervision, all of which arose from his employment by the archdiocese as a priest.

At [84] Longmore LJ reviewed the developing association between the claimant and the priest as follows:

“What is said in this present case is that while the Church would accept responsibility for abuse of an altar boy and (probably) a member of the congregation, this case is different because the victim of Father Clonan’s abuse came into his ambit in a nonchurch manner, by admiring his sporty Triumph car, by taking part in disco evenings to which all were welcome, clearing up afterwards and then doing jobs in the Presbytery where Father Clonan lived with Father McTernan. But the progressive stages of intimacy were to my mind only possible because Father Clonan had the priestly status and authority which meant that no one would question his being alone with the claimant. It is this that provides the close connection between the abuse and what Father Clonan was authorised to do.”

Longmore LJ at [86] considered that there “undoubtedly existed a ‘power or dependency relationship’ with the claimant arising from his position as a priest.” At [88] he observed that the case was one of the priest inviting the claimant to the presbytery and there abusing him, which Longmore LJ stated “displays a strong connection with the Church by a priest whose power and ability to exercise intimacy was conferred by virtue of his ordination by the Church.”

The mission of the Institute, a lay Roman Catholic order and unincorporated association, was to provide Christian education to children. Another organisation managed a Roman Catholic boys’ residential school and employed the brothers of the Institute to teach at the school. It permitted the Institute to nominate a brother to act as headmaster and to appoint other brothers to teach at the school. Former pupils brought claims for damages against various representatives of the diocese and the Institute alleging serious sexual and physical abuse of boys by brother teachers. Lord Phillips PSC (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agreed) determined that the Institute was vicariously liable for the acts of abuse. At [21] Lord Phillips identified two stages which are required to be addressed in determining the test for vicarious liability, namely:

At [35] Lord Phillips identified policy reasons which were relevant to the imposition of vicarious liability as follows:

“The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:

i)

The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

ii)

The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

iii)

The employee's activity is likely to be part of the business activity of the employer;

iv)

The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

v)

The employee will, to a greater or lesser degree, have been under the control of the employer.”

At [56] Lord Phillips considered elements of the relationship between the teaching brothers and the Institute and found that it had all the essential elements of the relationship between employer and employees. He identified and relied upon the hierarchical structure of the Institute; the fact that the teaching activity of the brothers and their contract of employment with a separate organisation were the result of the direction of the “provincial”; the teaching activity was in furtherance of the mission of the Institute; the manner in which the brothers were obliged to conduct themselves as teachers was dictated by the Institute’s rules.

At [59] he stated that:

“The business of the Institute was not to train teachers or to confer status on them. It was to provide Christian teaching for boys. All members of the Institute were united in that objective.

The relationship between individual teacher brothers and the

Institute was directed to achieving that objective.”

Lord Phillips found that the relationship between the teaching brothers and the Institute was sufficiently akin to that of employer and employees to satisfy stage 1 of the test of vicarious liability. At [61] he stated:

“There is a simpler analysis that leads to the conclusion that stage 1 was satisfied. Provided that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1, just as in the case of the action of a member of a partnership.”

As to stage 2 of the test in the context of sexual abuse allegations, Lord Phillips addressed the issue at [83] to [87] as follows:

“83.

Sexual abuse of children is now recognised as a widespread evil and the Criminal Records Bureau was established under Part V of the Police Act 1997 to reduce the risk of this by enabling screening of those seeking positions involving greater contact with young people and vulnerable adults. In Lister at para 48 Lord Clyde said that cases of sexual abuse by an employee should be approached in the same way as other cases in the context of vicarious liability. None the less the courts have been tailoring this area of the law by emphasising the importance of criteria that are particularly relevant to this form of wrong. In this way the courts have succeeded in developing the law of vicarious liability so as to ensure that a remedy for the harm caused by abuse is provided by those that should fairly bear that liability.

84.

Where those who have abused children have been members of a particular church or religious order and have committed the abuse in the course of carrying out activities in that capacity claimants have had difficulty in establishing the conventional relationship of employer/employee. What has weighed with the courts has been the fact that the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them both as teachers and as men of God.

85.

The precise criteria for imposing vicarious liability for sexual abuse are still in the course of refinement by judicial decision. Sexual abuse of children may be facilitated in a number of different circumstances. … This case … is concerned with the liability of bodies that have, in pursuance of their own interests, caused their employees or persons in a relationship similar to that of employees, to have access to children in circumstances where abuse has been facilitated.

86.

Starting with the Canadian authorities a common theme can be traced through most of the cases to which I have referred. Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.

87.

These are the criteria that establish the necessary ‘close connection’ between relationship and abuse. I do not think that it is right to say that creation of risk is simply a policy consideration and not one of the criteria. Creation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.”

The claimant alleged that she had been sexually abused by a priest appointed by the diocesan bishop, when she was a resident at a home operated by a Roman Catholic order of nuns. The defendants represented the trust which had stood in place of the diocesan bishop at the time. The Court of Appeal, in upholding the claim (Tomlinson LJ dissenting) held that a defendant might in law be vicariously liable for the torts of a tortfeasor who was not employed by him if the relationship between the defendant and the tortfeasor were so close in character to one of employer and employee that it was just and fair to hold the defendant vicariously liable. The priest was not the servant or employee of the bishop, but having regard to the degree of control which the bishop could exercise over the priest, the centrality of the priest’s activity to the objectives of the church and the extent to which the priest was integrated into the structure of the church, the relationship between the bishop and the priest was sufficiently akin to employment that it was just and fair that the trustees could be vicariously liable for his tortious actions.

Ward LJ stated at [62] that stage 1 of the test was established where the relationship between the tortfeasor and the defendant was “a relationship akin to employment”. At [72] Ward LJ identified signposts which may point to vicarious liability, which included:

The claimant was working as a catering manager in Swansea Prison and was injured when a bag of rice was dropped on her back by one of the prisoners working in the kitchen. She brought proceedings against the Ministry of Justice claiming damages for personal injury on the basis, inter alia, that it was vicariously liable for the negligence of the prisoner.

At [2] Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agreed) stated that the scope of vicarious liability depended upon the answers to two questions:

“First, what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual? Secondly, in what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defendant?”

The appeal in Cox was directed to the first question. The defendant was held to be vicariously liable for the negligence of the prisoner.

At [16] Lord Reed stated that it has “long been recognised that a relationship can give rise to vicarious liability even in the absence of a contract of employment.” As to the factors identified in [35] of Christian Brothers,Lord Reed considered that the first and fifth factors did not carry the significance of the remaining three. He found that the three factors are interrelated and concluded at [24] that Lord Phillips’ analysis wove together the related ideas so as to develop a modern theory of vicarious liability. Lord Reed stated:

“The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.”

At [29] Lord Reed did not confine the approach of Lord Phillips to special categories of cases which included the sexual abuse of children. Its intention was to provide a basis for identifying circumstances in which vicarious liability may be imposed outside relationships of employment. The approach focused upon the business activities carried on by the defendant and their attendant risks, relevant where “workers may be part of the workforce of an organisation without having a contract of employment with it”. At [30] Lord Reed stated:

“The defendant need not be carrying on activities of a commercial nature …. It need not therefore be a business or enterprise in any ordinary sense. Nor need the benefit which it derives from the tortfeasor’s activities take the form of a profit. It is sufficient that there is a defendant which is carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to him, have created a risk of his committing the tort.”

At [31] Lord Reed concluded that what had weighed with the courts in Christian Brothers and E was that the abusers were placed by the organisations, as part of their mission, in a position in which they committed a tort whose commission was a risk inherent in the activities assigned to them.

The issue for the Supreme Court was whether a doctor, who carried out medical examinations on behalf of the bank at his home and who was alleged to have sexually assaulted claimants in the course of his examinations, was in a relationship with the bank which was sufficiently akin or analogous to employment so as to make it fair, just and reasonable to impose liability, or whether he was an independent contractor.

Lady Hale, with whom Lord Reed, Lord Hodge, Lord Kerr and Lord Lloyd-Jones agreed, considered stage 1 of the vicarious liability test. Having considered the authorities of Christian Brothers and E it was noted that policy reasons are not the same as defining the criteria of legal rules. At [18] Lady Hale quoted from [56] to [58] of Christian Brothers in order to demonstrate that Lord Phillips was addressing the details of the relationship between the teaching brothers and the Institute and its closeness to employment rather than an analysis by reference to the five policy reasons set out in

At [27] Lady Hale identified the question relevant to stage 1 as follows:

“The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five ‘incidents’ identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability.”

The court determined that the doctor was not employed by the bank. He did work for the bank, the bank made arrangements for the examination and sent him forms to complete. The doctor was not paid a retainer which might have obliged him to accept a certain number of referrals from the bank, he was paid a fee for each report. He was free to refuse an offered examination. The doctor would have carried his own medical liability insurance. He was in business on his own account as a medical practitioner with a portfolio of patients and clients, one of those clients was the bank. The bank was held not to be vicariously liable for any wrongdoing by the doctor, who was to be regarded as an independent contractor.

Lord Reed (with which Lord Hodge, Lord Kerr, Lord Lloyd-Jones and Lady Hale agreed) focused upon stage 2 of the vicarious liability test, in particular the “close connection” approach. At [22] and [23] he referred to the judgment of Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366in which he identified the “general principle” applicable to vicarious liability arising out of a relationship of employment, namely that the wrongful conduct must be so closely connected with acts the employee was authorised to do that, for the purpose of the liability of the employer to third parties, it may fairly and properly be regarded as being done by the employee while acting in the course of his employment. Lord Reed referred to the judgment of Lord Phillips in Christian Brothers at [83] and [85] (above) and at [23] stated 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.”

Globe J upheld a claim by a woman, A, against Watch Tower Bible and Tract Society of Britain and two congregations of which she had been a member. As a child, A had been sexually assaulted by a ministerial servant in her congregation. Globe J held that the defendants were vicariously liable for the assaults and for the acts of the elders who had failed to take steps to protect her when they discovered that the individual had sexually assaulted another child in the congregation.

Globe J considered the structure and hierarchy of Jehovah’s Witnesses and the role of elders and ministerial servants, referencing the strict code of moral conduct based on the scriptures by which Jehovah’s Witnesses strive to live. At [63], having reviewed the evidence as to structure and governance of Jehovah’s Witnesses and the evidence from “numerous elders”, Globe J observed that:

“… being a Jehovah’s Witness is a way of life for all members. It is not confined to the attendance at services. It affects every aspect of one’s daily life. That is particularly so for those who become elders and ministerial servants. The strict code of moral conduct by which all members are expected to observe and apply to their day-to-day living is enforced by the existence of the judicial committee and its jurisdiction over all aspects of the life of a Jehovah’s Witness.”

At [65] he noted that: “The high level of control over all aspects of the life of a Jehovah’s Witness is arguably a closer relationship than that to be found in an employer/employee relationship.” As to whether a ministerial servant could be considered more like an independent contractor than an employee, at [70] Globe J stated: “He is a fundamental part of the whole enterprise dedicating himself to the good of Jehovah’s Witnesses. His duties are solely to serve the interests of the organisation. He is constantly working for the good of the organisation of Jehovah’s Witnesses and not for himself.”

As to stage 2, Globe J found at [86] that the individual’s access to the claimant’s mother and through her to her children was as a direct result of his known and established position as a ministerial servant. At [90] he found that his progressive acts of intimacy were only possible because he had the actual or ostensible status of a ministerial servant that meant no one who saw him questioned him being alone with the claimant. That provided the close connection between the abuse and what the individual was authorised to do. The acts of abuse were inextricably interwoven with the carrying out of his duties.

At [157] the judge identified the question to be answered at the first stage as being:

“… whether the relationship between the Defendants and Mark Sewell, one of their elders, was capable of giving rise to vicarious liability. The key questions, to adopt the formulation of Lord Reed in Cox, are (i) whether Mark Sewell carried on activities as an integral part of the ‘business’ activities carried on by the Defendants and for its benefit and (ii) whether the commission of the rape was a risk created by the Defendants by assigning those activities to Mark Sewell. To my mind, the answer to both questions is ‘Yes’.”

The judge explained his reasoning at [158] to [164] as follows:

“158.

To the first question, the answer is clear. Elders are the spiritual leaders of the congregation. To be appointed an elder a publisher must first have served as a ministerial servant and demonstrated that he is spiritually suitable to be an example to others. An elder may be removed if he fails to maintain the high standards expected of him, whether in performance of his duties as an elder or in his personal life. Elders are the principal conduit through which the teachings of the faith, as represented in Watchtower and other publications, are disseminated to congregations. Instructions from the worldwide organisation on matters such as the reporting of child abuse are addressed to them. Insofar as a congregation of Jehovah’s Witnesses acts as a body, it acts through its elders. An elder is as integral to the ‘business’ of a congregation of Jehovah’s Witnesses as a priest is to the ‘business’ of the Catholic Church.

159.

All this is apparent from Mr Schofield’s evidence alone. However, it is consistent with the conclusion reached by Globe J in relation to ministerial servants. Although his conclusions rested on the evidence before him, the evidence before me was not materially different. I accept Mr Counsell’s submission that, if anything, the position in relation to elders is a fortiori.

160.

The second question is whether the commission of the rape was a risk created by Barry Congregation by assigning those activities to Mark Sewell. I have concluded that the answer to this question is also ‘Yes’, for three reasons.

161.

First, any organisation that confers on its leaders power and authority over others creates a risk that those leaders will abuse that power and authority. This is as true of a religious organisation as it is of a secular one. There is no doubt that the teachings of Jehovah’s Witnesses confer on elders (who are said to be appointed through the intermediation of Jehovah) considerable power and authority over other publishers, who are enjoined to be obedient and submissive to them, at least when their guidance does not conflict with the Bible.

162.

Second, where an organisation makes rules for all aspects of its adherents’ lives, and sets its leaders up as moral and spiritual exemplars, it imbues those leaders with power and authority even outside the confines of their religious activities. The suggestion that publishers should reject instructions from elders that do not accord with Biblical teaching must be seen in light of the specific guidance that ‘a spirit of independent thinking does not prevail in God’s organisation, and we have sound reasons for confidence in the men taking the lead among us’, that ‘[t]he elders adhere to scriptural truth’ and that ‘we should not magnify [elders’] human imperfections’ (Watchtower, 15 September 1989, ‘Be Obedient to those Taking the Lead’, §13). An organisation that chooses to give advice of that kind creates a risk that its adherents will mistakenly follow the instructions they are given by elders, even if on a proper analysis they are contrary to the Biblical teaching.

163.

Third, sexual abuse is almost always a form of abuse of power. Where (as here) the act of abuse involves physical violence, it will generally be enabled by the relatively greater physical power of the abuser compared to his victim. But acts of sexual abuse rarely happen out of the blue. Often, the perpetrator abuses his own power, or that of others, to engineer a situation in which the abuse can occur, i.e. to legitimate and enable what Longmore LJ in Maga called the ‘progressive stages of intimacy’. Any organisation that confers on its leaders power over others creates the risk that they will abuse it in that way.

164.

This means that the relationship between the Defendants and Mark Sewell was capable in principle of giving rise to vicarious liability for acts of sexual abuse perpetrated by him on members of the congregation. Whether the particular act of sexual abuse at issue here, his rape of Mrs B on 30 April 1990, was sufficiently connected to his status as elder is, of course, a different question.”

At [165] the judge observed that the question at stage 2 overlaps to some extent with the second question at stage 1. He identified the focus as being on the relationship between the tort committed by Mark Sewell and his position as elder. The victim was an adult married woman who was aged 29 at the time of the rape. It was her decision to associate with Mark Sewell when they first met and her decision to continue to see him as his behaviour began to deteriorate. That, of itself, did not determine the issue. The judge recognised at [167] that the rape did not occur whilst Mark Sewell was performing any religious duty. However, he did not regard that as a necessary ingredient of liability in cases of this kind. He described the test as being “more opentextured” and one which required an analysis of all aspects of the relationship between the tort and the abuser’s status. The judge identified five relevant aspects at [168] to [172] as follows:

“168.

First, Mr and Mrs B met Mark and Mary Sewell when Mark was a ministerial servant. I accept that the two couples began to associate in part because Mr and Mrs B perceived them, because of Mark’s position, to be of high standing in the community of Jehovah’s Witnesses. By associating with them, Mr and Mrs B were practising ‘good association’. Mr B also had aspirations to become a ministerial servant, which he did at the same time Mark Sewell became an elder. So, Mark Sewell’s status as an elder was one factor in the couple’s developing friendship. This would plainly not be enough on its own to justify holding the Defendants vicariously liable for Mark Sewell’s torts, but it is a piece of relevant context.

169.

Second, another reason why the two couples continued to socialise was because they got on well. In particular, Mrs B found Mark Sewell charming and funny and she and Mr B enjoyed his and Mary’s company. But there came a time, probably in late 1989, when Mark Sewell began to cross boundaries and act inappropriately both towards Mary and towards Mrs B. I accept Mrs B’s evidence that one important reason why she tolerated this was because Mark Sewell was an elder. This meant both that Mrs B assumed that he would be acting from pure motives and that there could be repercussions if she were to call out his inappropriate behaviour. Mark Sewell’s ability to get away with inappropriate behaviour is illustrated by the lack of comment when he greeted women members of the congregation by kissing them on the lips. His own perception of the significance of his status can be seen from Mrs B’s evidence, which I accept, of his reaction when confronted by her about his sexual abuse of CXC: ‘He told us he could do what he liked because he was an elder and that he was not answerable to us.’

170.

Third, the instruction from Tony Sewell, a senior elder, to Mr and Mrs B to act as confidants to Mark made it difficult to break off the friendship even after Mark’s behaviour became seriously concerning. Although Tony Sewell did not specifically say that Mrs B should act as confidante to Mark alone, he implied that by giving the example of his wife (who had confided in a male elder rather than her husband). I reject Ms Foster’s submission that, in giving the instruction Tony Sewell was acting qua Mark’s father, rather than qua elder. Such a distinction would be unreal in these circumstances, given that, as FXC said and I accept, the teachings of Jehovah’s Witnesses, and the authority of the elders, extended to all aspects of a publisher’s life, not just those concerned directly with evangelism and with religious services. It is relevant that Tony Sewell finished the meeting with a prayer, deliberately invoking Mrs B’s religious obligation to do what he had instructed. In giving his implied instruction to Mrs B to act as confidante to Mark, Tony Sewell had not, therefore, cast off the mantle of an elder; on the contrary, he had deliberately assumed it. The significance of the instruction was not undermined by the fact that it might conflict with the rule that men should not be alone with women to whom they were not related, because, as FXC said and I accept, elders were given more leeway than others in this regard and, by virtue of their status, might be assumed by other members of the congregation to be acting from pure motives. Thus, I accept as true Mrs B’s evidence that ‘had it not been for the fact that Mark was an elder and I had received an instruction from another elder, his father, our friendship with Mark and Mary would have come to an end well before [the rape]’.

171.

Fourth, it is material that the rape occurred after Mr and Mrs B had been out pioneering – i.e. performing the central religious duty of Jehovah’s Witnesses. That is why Mr and Mrs B and Mark and Mary Sewell were together on the day when the rape occurred. It is also relevant that, as FXC said and I accept, Mark Sewell’s house was ‘an “approved” venue by the Barry Elders’; and that Mrs B went to the back room of that house, where the rape took place, because she had ‘decided to go to speak to Mark to convince him that he should go to the elders about his depression’ – in other words to convince him to fulfil what she regarded as his duty as one of Jehovah’s Witnesses and as an elder.

172.

Fifth, on the basis of Mrs B’s evidence about what Mark Sewell said to Mr B, which I accept, I find that Mark Sewell had formed the belief that there had to be an act of adultery in order to generate scriptural grounds for him to divorce Mary. The idea of relying on a rape to legitimate a divorce was, of course, a perversion of the beliefs and teachings of Jehovah’s Witnesses, but on the evidence before me it appears to have played a part in Mark Sewell’s thinking at the time of the rape. The fact that, in his mind, rape was equivalent to adultery suggests a mindset in which he was entitled to act as he desired and Mrs B would or should submit to him. Such a mindset is utterly contrary to the teachings of Jehovah’s Witnesses, but the evidence establishes that his pathological beliefs about his own entitlement to exercise power over others were bound up with the position and status the Defendants had given him by appointing him as an elder.”

Having identified the five relevant factors, the judge found at [173] that the following conclusions could be drawn:

“Taking these features of the relationship together, the following conclusions can be drawn:

(a)

The fact that Mark Sewell held a position in the Congregation (initially, ministerial servant) was an important part of the reason why Mr and Mrs B started to associate with Mark and Mary Sewell.

(b)

But for Mark Sewell’s and Tony Sewell’s position as elders, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape. There was, therefore, the ‘strong causative link’ referred to by Lord Phillips in the Catholic Child Welfare Society case at [86].

(c)

The Defendants created or significantly enhanced the risk that Mark Sewell would sexually abuse Mrs B by creating the conditions in which the two might be alone together through (i) Tony Sewell’s implied instruction that she continue to act as his confidante (an instruction which carried the authority conferred by the Defendants because of his position as an elder) and (ii) investing Mark Sewell with the authority of an elder, thereby making it less likely that Mrs B (or others) would question his motives and emboldening him to think that he could act as he wished with little fear of adverse consequences.

(d)

The rape took place in circumstances closely connected to the carrying out by Mark Sewell and Mrs B of religious duties at a venue – Mark Sewell’s home – which was ‘approved’ by the elders of the Barry Congregation.

(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 him to divorce Mary. His mindset, in which he appears to have equiparated rape and adultery, was closely bound up with his position as an elder.”

He concluded that the rape was sufficiently closely connected to Mark Sewell’s and Tony Sewell’s position as elders to make it just and reasonable that the defendant should be held vicariously liable for it.

The appellant contends that the judge’s application of the stage 1 test replaced the principles underlying the concept of vicarious liability with policy reasons. The two questions identified by the judge at [157] in respect of stage 1 are adapted from the words of Lord Reed at [24] in Cox and are said to be based upon two of the five policy reasons identified by Lord Phillips in Christian Brothers at [35].

The judge is said to have made no, or at least no searching, inquiry into the actual as opposed to presumed relationship between Mark Sewell and the defendants in order to determine its closeness to employment. No evidence was presented of any actual religious activity by Mark Sewell either as an elder or as a ministerial servant. The judge made no findings as to Mark Sewell’s actual religious activities, instead the judge “merely adopted and relied upon the judgment of Mr Justice Globe” in A (above). The only factual determinations made by the judge regarding the alleged relationship between Mark Sewell and the Barry Congregation were that elders are the spiritual leaders of the congregation and are allegedly the principal conduit through which the teachings of the faith are disseminated to the congregations. The judge provided no justification for his conclusion at [158] that an elder is as integral to the business of a congregation of Jehovah’s Witnesses as a priest is to the business of the Catholic Church.

The judge erred in oversimplifying the analysis of the “akin to employment” test. The judgments in Christian Brothers and E identify two elements that characterise employment: control and economic dependence. In respect of Mark Sewell, neither was present on the facts of this case. There was no evidence that the Barry Congregation exercised any control over Mark Sewell and no greater control than could be exercised over an independent contractor. As a volunteer, Mark Sewell had freedom to accept or decline any religious assignments and could freely relinquish the role of an elder at any time for any reason. The fact that he was subsequently disfellowshipped is irrelevant. The part-time volunteer activities of Mark Sewell are more akin to those of an independent contractor.

The judge’s identification of the test at [165] omitted consideration of what Mark Sewell was authorised to do. As to the judge’s conclusions at [165] to [174] of the judgment, he erred by focusing on the relationship between the respondent and Mark Sewell and not the defendants and Mark Sewell. The focus should have been on Mark Sewell’s activities and their connection with the wrongdoing. It was no part of his spiritual duties to activate a friendship with the respondent. It was in the context of close friendship that the rape occurred.

As to the five aspects identified by the judge ([168] to [172]), the history of the friendship between Mrs B and Mark Sewell, his behaviour in kissing Mrs B on the lips and the evidence of no complaints being made, is said to be irrelevant to stage 2. Tony Sewell’s alleged instruction to Mr and Mrs B to act as confidants to Mark Sewell is irrelevant as Tony Sewell is not the tortfeasor. As to the pioneering work done on 30 April, there was no causal connection between those activities and the rape. Any connection was severed by the intervening events, namely the pub lunch, the drinking, collecting children, and the inappropriate drunken behaviour of Mark Sewell, the timelapse and geographical distance. The judge failed to identify any activity entrusted to Mark Sewell which could constitute evidence for the stage 2 test. As to Mark Sewell’s motive ([172]), this warped personal motive had nothing to do with authorised activity. Mark Sewell was not purporting to act as an elder, he was pursuing a despicable frolic of his own.

The issue in this appeal is whether the relationship between an elder and the Jehovah’s Witnesses is capable of giving rise to vicarious liability.

The test was defined by Lord Phillips in Christian Brothers as whether “… the relationship of [the tortfeasor] and [the defendant] … is one that is capable of giving rise to vicarious liability” [21]. In E, stage 1 of the test was said to be satisfied where it was established that the relationship between the tortfeasor and the defendant was “a relationship akin to employment”. The Supreme Court decisions in Barclays Bank and Wm Morrison do not change the common law on vicarious liability. In each case the Supreme Court applied existing legal principles rather than develop the law.

The determination of whether the relationship between an elder and the Jehovah’s Witness organisation is one that is capable of giving rise to vicarious liability ultimately turns upon the judge’s findings of fact as to the extent to which the elder’s role in the defendants’ organisation sufficiently demonstrated that stage 1 is established.

In his judgment, the judge properly considered his findings of fact through the prism of the test set out by Lord Reed in Cox at [24] and made relevant factual findings at [158].

The judge’s analysis accorded with the approach taken by the Supreme Court and the Court of Appeal in other cases. In Christian Brothers at [61] Lord Phillips considered it sufficient that “… a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1 …” The respondent contends that the position is analogous to that in this claim. The judge was entitled to conclude that the relationship between elders and the Jehovah’s Witnesses was one which could be capable of giving rise to vicarious liability, his findings at [157] to [164] evidenced this fact. Elders are integral to the organisation, the nature of the elders’ role is directly controlled by the Jehovah’s Witnesses organisation, they are conferred with power by the organisation and its inherent structure. The conclusions were correct.

The original formulation of the stage 2 test is set out by Lord Phillips in Christian Brothers at [21]. At [23] of Wm Morrison Lord Reed acknowledged that the close connection test has been applied differently in cases concerned with the sexual abuse of children. At [36] Lord Reed stated that a “more tailored version of the close connection test is applied” in sexual abuse cases. Lord Reed did not confine the tailored test to cases involving children.

In determining the issue the judge applied the tailored version of the stage 2 test. He made findings of fact which led to the legitimate conclusion that it was satisfied.

At trial the respondent needed to establish that Mark Sewell was able to rape the respondent because there was a link between the rape and his relationship with the defendants, that being his status as an elder.

The judge set out the legal principles correctly at [132] onwards. At [165] he reminded himself of the issue he needed to determine, namely:

“The question at stage two of the inquiry overlaps to some extent with the second question at stage one. It focuses, however, on the relationship between the tort committed by Mark Sewell and his position as elder.”

It follows that the judge’s determination turned on his interpretation of the evidence and findings of fact as to the extent to which there was a link between Mark Sewell’s position as an elder and the abuse sustained by the respondent.

The judge’s findings at [173] are clear. The crucial finding is that “But for Mark Sewell's and Tony Sewell's position as elders, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape.” It follows logically that absent his status as an elder, Mark Sewell would not have raped the respondent. The judge found there was a strong causative link between Mark Sewell’s status as an elder and the rape. The findings were careful, logical, in accordance with the law and founded upon the evidence which he had heard.

The test for vicarious liability was identified by Lord Phillips at [21] of Christian Brothers. Two questions are posed:

In E at [62] Ward LJ found that the stage 1 test was established where it was shown that the relationship as between the tortfeasor and the defendant was “a relationship akin to employment”. The Supreme Court decisions in Barclays Bank and Wm Morrison did not change the common law on vicarious liability. At [17] of Wm Morrison Lord Reed stated that previous Supreme Court authorities had “… not intended to effect a change in the law of vicarious liability; quite the contrary”. In each case the court applied existing legal principles.

Lord Phillips at [35] of Christian Brothers identified five policy reasons which were relevant to the imposition of vicarious liability but, critically at [56], he identified specific elements of the relationship between the teaching brothers and the Institute which reflected the relationship between an employer and employee. It is of note that they included the hierarchal structure of the Institute, the fact that the teaching activity was in furtherance of the mission of the Institute and that the manner in which the brothers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. These and other factors were relevant to the court’s finding that this was a relationship sufficiently akin to that of employer and employee to satisfy stage 1 of the test of vicarious liability.

It is clear from the evidence of Mr Schofield that the Jehovah’s Witness organisation is central to the lives of its publishers, ministerial servants and elders. Its structure could fairly be described as hierarchical. It exercises control over its members, which goes beyond activities directly related to the dissemination of the Kingdom message. It discourages socialising outside the organisation. It permits only men to become ministerial servants or elders, identifying elders as overseers who were responsible for taking the lead in caring for the “sheep-like-ones”. Instructive is the Watchtower article entitled “Be Obedient to those Taking the Lead” published on 15 September 1989. It is the overseers, i.e. the elders, who are to take the lead, providing “loving oversight” to the congregation under the supervision of the governing body of Jehovah’s Witnesses. The elders are said to have been spirit-appointed to care for the spiritual needs of the congregation. They see to it that the Kingdom message is preached in the territory of the local congregation. The hearts of the congregation are said to be motivated to cooperate with such loving overseers. The congregation was informed that they would be helped to obey and honour those taking the lead if they remember that God himself has provided the elders. In the article it is stated that “… a spirit of independent thinking does not prevail in God’s organisation, and we have sound reasons for confidence in the men taking the lead among us.” The elders are said to be trained to be kind, loving and helpful, yet “firm” in upholding Jehovah’s righteous standards.

In identifying two key questions, namely (i) whether Mark Sewell carried on activities as an integral part of the “business” activities carried on by the defendants and for their benefit and (ii) whether the commission of the rape was a risk created by the defendants by assigning those activities to Mark Sewell, the judge did adopt the formulation of Lord Reed at [24] of Cox but in so doing he was addressing the issue of whether the relationship between the tortfeasor and the party said to be vicariously liable is one that is capable of giving rise to liability.

The judge did carry out a searching inquiry as to the role of elders within the Jehovah’s Witness organisation. The judge’s findings at [158] are clear, cogent and reflect the evidence. The core findings made by the judge are that:

At [159] the judge correctly observed that the findings were apparent from Mr Schofield’s evidence and were consistent with the conclusion reached by Globe J in the case of A in relation to ministerial servants. As the judge noted, the evidence before him was not materially different from that before Globe J. If anything, the position in respect of elders was stronger. The appellant’s contention that the judge did no more than accept the findings of Globe J in relation to ministerial servants misrepresents the analytical approach taken by the judge to the factual evidence before the court.

I accept that the judge’s finding that an elder is as integral to the “business” of a congregation of Jehovah’s Witnesses as a priest is to the “business” of the Catholic Church was based on the evidence before the court and was a reasonable conclusion to draw on the facts.

As to the second question, namely whether the commission of the rape was a risk created by the Barry Congregation in assigning the activities of an elder to Mark Sewell, the judge made the following findings:

The point taken by the appellant that there was no evidence of the actual religious activity of Mark Sewell is without merit. It was the defendants who chose to call Mr Schofield to give evidence to the court as to the organisation and structure of Jehovah’s Witnesses, in particular the role of elders. If it was any part of the defendants’ case that Mark Sewell had not had conferred upon him the authority and duties of an elder, that point could, and should, have been taken at trial. It was not. In the circumstances the

The findings of fact made by the judge were based upon the evidence of Mr Schofield or were inferences which could reasonably be drawn from it and from articles in the Watchtower magazine. They were findings which the judge was entitled to make and represented a sound evidential basis for his finding at [164] that the relationship between the defendants and Mark Sewell was, in principle, capable of giving rise to vicarious liability for acts of sexual abuse perpetrated by him on members of the congregation.

In Christian Brothers at [61], in considering stage 1, Lord Phillips considered it sufficient that “… a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1 …” I accept the contention of the respondent that the position in this appeal is analogous to that described by Lord Phillips. In performing their activities as elders in leading the congregation, the elders were the chief conduit of the guidance and teachings of Jehovah’s Witnesses, they were not carrying on business on their own account. Elders were integral to the organisation, the nature of their role was directly controlled by it and by its structure. The judge was entitled to conclude that the relationship between elders and the Jehovah’s Witnesses was one that could be capable of giving rise to vicarious liability.

The judge’s identification at [165] of the relevant test as focusing on the relationship between the tort committed by Mark Sewell and his position as an elder of the organisation reflects the essence of the test identified by Lord Phillips in Christian Brothers, namely whether there is a sufficiently close connection between the relationship between the tortfeasor and the organisation and the act or omission of the tortfeasor.

The judge accepted that the rape did not occur when Mark Sewell was performing any religious duty. At [167] he observed that that is not a necessary ingredient of liability 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. I agree. The judge’s reference to the more open textured test reflects the observations of Lord Phillips in Christian Brothers at [84] in considering cases of sexual abuse. Lord Phillips stated that “what has weighed with the court has been the fact that the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them, both as teachers and as men of God.” The fact that Mrs B was aged 29 does not undermine the relevance of this observation and its focus upon physical proximity and authority. At [45] of Maga Lord Neuberger relied, inter alia, upon the “special role” of the priest which involves trust and responsibility and the fact that the priest has “a degree of general moral authority” as factors which led him to conclude that the close connection test was met even though the priest was acting qua youth worker and not qua priest. In Wm Morrison at [23] Lord Reed identified the fact that the close connection test has been applied differently in cases concerned with the sexual abuse of children where 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.”

Contained within the tailored test in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailored version of the test applies in cases in which adults are alleged to have been sexually abused as it does in such cases involving children because the rationale for the test is the same. The issue is the connection between the abuse and the relationship between the tortfeasor and the defendant. It is not the particular characteristics of the victim. 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 publishers in the congregation.

In analysing the relationship between the rape committed by Mark Sewell and his position as an elder, the judge identified five relevant aspects. His findings at [168] that Mark Sewell’s status as an elder was one factor in the couple’s developing relationship and that Mrs B tolerated Mark Sewell’s inappropriate behaviour towards her because Mark Sewell was an elder, which meant that she assumed he would be acting from pure motives and that there could be repercussions if she were to call out his inappropriate behaviour, reflects undisputed evidence. Of particular note is the judge’s identification of Mark Sewell’s perception of the significance of his status as an elder, reflected in his response when confronted by Mrs B about his sexual abuse of

The instruction from Tony Sewell, a senior elder, to Mr and Mrs B to act as confidants to Mark, which made it more difficult to break off the relationship even after Mark Sewell’s behaviour became seriously concerning was relevant and found to be so by the judge. The judge’s finding, that in giving the instruction Tony Sewell was acting qua elder rather than as Mark’s father, was reasonable. Tony Sewell chose to close the meeting with Mrs B and Mary Sewell with a prayer. The judge’s finding reflected the teachings of Jehovah’s Witnesses, the authority of the elders which extend to all aspects of a publisher’s life.

In my judgment, of the findings made by the judge, critical was his acceptance of Mrs B’s evidence that “had it not been for the fact that Mark was an elder and I had received an instruction from another elder, his father, our friendship with Mark and Mary would have come to an end well before [the rape]”. Quite simply, had Mrs B felt able to end the friendship at an earlier time, Mark Sewell would not have been able to continue his close proximity to Mrs B and she would not have felt compelled to tolerate his increasingly inappropriate and unbearable behaviour because he was an elder.

These findings of fact led the judge to conclude that:

“(a)

The fact that Mark Sewell held a position in the Congregation (initially, ministerial servant) was an important part of the reason why Mr and Mrs B started to associate with Mark and Mary Sewell.

(b)

But for Mark Sewell’s and Tony Sewell’s position as elders, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape. There was, therefore, the ‘strong causative link’ referred to by Lord Phillips in the Catholic Child Welfare Society case at [86].

(c)

The Defendants created or significantly enhanced the risk that Mark Sewell would sexually abuse Mrs B by creating the conditions in which the two might be alone together through (i) Tony Sewell’s implied instruction that she continue to act as his confidante (an instruction which carried the authority conferred by the Defendants because of his position as an elder) and (ii) investing Mark Sewell with the authority of an elder, thereby making it less likely that Mrs B (or others) would question his motives and emboldening him to think that he could act as he wished with little fear of adverse consequences.”

In my judgment, these three conclusions of the judge provide the basis for satisfying the test of close connection in respect of Mark Sewell’s position as an elder, his role and authority within the organisation and the power which it engendered so as to make it just and reasonable for the defendants to be held vicariously liable for his act in raping Mrs B.

Accordingly, for the reasons given, and subject to the opinions of Bean LJ and Males LJ, I would dismiss this appeal.