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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barry Congregation of Jehovah's Witnesses v BXB  EWCA Civ 356 (15 March 2021)
Cite as:  WLR(D) 154,  4 WLR 42,  4 All ER 518,  PIQR P15,  EWCA Civ 356
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ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE CHAMBERLAIN
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE NICOLA DAVIES DBE
LORD JUSTICE MALES
| THE TRUSTEES OF THE BARRY CONGREGATION OF JEHOVAH'S WITNESSES
|- and –
James Counsell QC and Benjamin Bradley (instructed by Bolt Burdon Kemp) for the Respondent
Hearing date: 11 February 2021
Crown Copyright ©
Lady Justice Nicola Davies:
i) In his application of stage 1 of the test for vicarious liability the judge erred by his conclusion that the activities undertaken by Mark Sewell were an integral part of the "business" activities carried on by the defendants and that the commission of the rape was a risk created by the defendants assigning those activities to Mark Sewell;
ii) In his application of stage 2 of the test for vicarious liability, the judge erred by his conclusion that the rape was sufficiently closely connected to Mark Sewell's position as an elder to justify the imposition of vicarious liability.
"This distinction between a religious belief or practice and its civil consequences underlies the way that the English and Scottish courts have always, until recently, approached issues arising out of disputes within a religious community or with a religious basis. In both jurisdictions the courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust. We consider each circumstance in turn."
At  it was accepted that a court can treat a religious dispute as justiciable "where the determination of the dispute is necessary in order to decide a matter of disputed legal right."
The factual background
Evidence at trial – Mrs B
"We felt proud to count Mark as one of our friends. It was because of his standing as a Ministerial Servant and then an Elder that our friendship became close as it did."
"…my husband had now become a Ministerial Servant and had ambitions in due course to become an Elder. Having Mark as a friend meant that Mark would have been in a position to guide and assist my husband in that regard. In addition, Mark seemed like a lovely, kind, genuine, helpful man. He could be very charming and funny."
As to the role of elders, Mrs B described it as follows:
"The Elders are like shepherds, as it were.
Their directions are always followed by members of the congregation and they are very rarely criticised. There can be serious repercussions for those who disobey them. Anybody who disobeyed an Elders instruction would receive what was called a 'shepherding call'. This would involve an elder coming to see the person concerned at their house or, in a more serious case, a judicial committee would be set up in the Kingdom Hall at which the person concerned would be given instructions on how to behave. If that person continued to disobey, they would be disfellowshipped."
"I didn't want to make an issue out of it nor did I feel able to complain to anybody else. The Jehovah's Witness Organisation teaches members to love their brothers and sisters, and I therefore felt that complaining about a fellow member of the congregation would go against his teaching. As a Ministerial Servant and now an Elder, he was in a position of authority and had been awarded that title as a result of his being considered to be a trusted member of the congregation and capable of providing advice and guidance. It would have been very difficult to question his actions without facing repercussions. I did not know at the time that, if any ordinary member of the congregation had behaved in this way, it would have been considered to be inappropriate."
"He made us feel that this was the right thing to do as good Jehovah's Witnesses.
I was reluctant to spend more time with Mark because he made me feel uncomfortable. However, if an elder told me, as a publisher to do something, then it was my duty to do so. Tony had decided that this was the course of action to be taken and his request was really an instruction from an Elder. I was required by my faith and the congregation to carry out that instruction and to provide Mark with the extra support that he was deemed to require whatever I felt about it. Although there is no hierarchy of Elders, Tony was a highly respected Elder and had been an Elder for many years.
The meeting between Tony, Mary and myself ended with Tony saying a prayer for us to help Mark and calling upon Jehovah to help us."
"My husband and I found that we had got to the stage where we could not remove ourselves from the situation. Mark was an Elder in the congregation, and his father, Tony, had directed us to support Mark. We had no choice but to maintain the friendship. Looking back, I am sure 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 what I describe below happened. Indeed, this situation was so difficult for us that it was causing problems in my relationship with my husband."
"42. … On 30 April 1990, when Mrs B was 29 years old, she, Mr B, Mark and Mary were taking part in auxiliary pioneering in Cowbridge, South Wales. They all went to a local pub for lunch. Mark drank beer and wine. He argued with Mary and she threw a glass of whisky over him. Mark stormed off. Mr B went to look for him and found him outside with a card from a local solicitor's office, saying that he wanted to divorce Mary. Mr B told him that would not be possible as divorce is only permitted within the Jehovah's Witness community on specific grounds, which include adultery. Mark said that he would convince Mary that that ground was made out. Later that afternoon, Mr and Mrs B and Mark and Mary picked up their respective children and returned to Mark and Mary's house. The children were upstairs playing. Mark went into a back room. Mrs B says:
'Mark went into the back room. The children were on the third floor of the house playing. My husband, Mary and I sat in the front room talking about what we were going to do about Mark. As he had previously confided in me about his troubles and it was I who had been given that role, I decided that I should go to speak to Mark to try to convince him that he should go to the Elders about his depression.'
43. Mark was drunk and upset. A conversation ensued during which Mark pushed Mrs B to the floor, held her down, pushed up her skirt, ripped off her underwear and raped her. The penetration lasted for about 20 to 30 seconds, during which he ejaculated.
44. After they got home, Mrs B told Mr B what had happened. She says:
'He reacted by saying "I knew it" and told me about what Mark had said in Cowbridge about wanting to give Mary a reason for them to divorce. I remember him saying to me that "half of me wants to go round and beat him… but the other half of me says I have to forgive my brother."'
45. A few days later, there was a planned barbecue at the Sewells' home. Mrs B confronted Mark about what had happened. Mark begged Mrs B for her forgiveness. Mrs B's evidence was as follows:
'Part of the teachings of Jehovah's Witnesses is to forgive one's brother if they are truly repentant. At the time, I believed that Mark's pleas for forgiveness meant that he was truly repentant because he seemed so plausible and so genuine. I said to him that I wouldn't take the matter any further but that he shouldn't ever come near me again. He said that he would do whatever it takes, and we left it at that.
I felt that my only option was to forgive Mark. It was in part due to these teachings that I did not feel compelled to report Mark to the Body of Elders. Although I know that this is not rational, I was absolutely terrified that, by my actions, I felt that I had brought shame on Jehovah's name and the others would find out. I was very worried about how that would affect my family and also Mary. I also felt shame and guilt.
I also felt a continued pressure to continue to support Mark due to his position in the complication as Elder as well as his father's earlier request. The position that both Mark and his father held within the congregation also made me feel that I was unlikely to be believed if I choose to report Mark to the Body of Elders.'
46. In May 1990, Mr and Mrs B and Mark and Mary went together on a family holiday to Portugal. The holiday had been booked before the rape occurred. Mrs B says:
'Obviously the last thing I wanted to do was to go on the trip with them, but my children were looking forward to it and I could not think of an adequate excuse to provide to Mary as to why we would not want to go and I had told Mark that I had forgiven him.
I didn't want to disappoint my children and the honour associated with spending time with an Elder's family made it difficult for me to avoid socialising with Mark and Mary and their family.
I was also aware of the continued instruction of Tony to support Mark and Mary, even though my fear of Mark increased. Given the position of an elder that both Tony and Mark held, I felt that I was unable to deny the request to continue to provide support to Mark and Mary although my husband and I were really struggling with this now.'
On the holiday, there was an incident in which Mark ripped off Mrs B's bikini top in the pool. This, she says, 'brought back the horror of what he had done to me'."
"We spoke to Mark the next day. He told us he could do what he liked because he was an elder and that he was not answerable to us. He said that CXC needed to be disciplined because she had been smoking and that whatever she might have said would be lies."
"I think they came and visited me at home. Incredible as it may sound, I think David Newman said to me that this was a classic case of "wife swapping". The committee reached this decision because it was Mark's word against mine. It was necessary for there to be two adult witnesses to corroborate an allegation. This test was not met because Mark had denied what happened and there was no one else there to see it. This was also the case with CXC. She was not considered to be a witness at all because she was a minor. Furthermore, I was instructed not to tell anyone else about the abuse and that I ought to move congregation so that I no longer had to see Mark. My perception was that the Elders had concluded that Mark's assault had been my fault."
The father of CXC
"93. The organisational structure of Jehovah's Witnesses is modelled on first century Christianity as described in Scripture. In line with the precedent set in Acts 15, the Governing Body provide Bible-based instruction to over 8.5 million Jehovah's Witnesses in over 240 lands worldwide. There are around 90 branch offices worldwide and the activity of each is overseen by a Branch Committee. The Britain branch committee has offices in London. During the period relevant to this claim, the branch was divided into districts, overseen by a district overseer. Each district comprised approximately 12 circuits. A circuit comprised approximately 20 congregations and a circuit overseer (representing the branch office) visited each congregation for six days twice yearly.
94. Mr Schofield says:
'There is no clergy laity class distinction or paid clergy in our Christian community. The Bible teaches that there are no class distinctions in the Christian congregation, we are not to show favouritism and all are equal in God's sight (Galatians 3:28; James 2:9; Acts 10:34, 35). Jehovah's Witnesses call and view each other as spiritual "brothers" and "sisters". No human is a "leader" in the congregation – Matthew 23:8-10.'
95. Baptism is a public declaration of one's dedication to God, whose name is Jehovah as revealed in the Bible. In order to be baptised, a person willingly undertakes a program of Bible study with one of Jehovah's witnesses. Mr Schofield says:
'Any obligation and individual feels once he is baptised as one of Jehovah's Witnesses arises from his knowledge and understanding of the Bible and his personal devotion to God. Jehovah's Witnesses are not under compulsion or obligation to any legal or natural person to engage in any particular religious activity. To the extent that Jehovah's Witnesses engage in such activities, they do so voluntarily out of love for God and neighbour in accordance with their personal knowledge and understanding of the Bible.'
96. The Bible describes two groups of Christian men who have responsibilities to care for the congregation – 'overseers' and 'ministerial servants' (Philippians 1:1). Overseers are also known as 'elders'. During the relevant period, ministerial servants were recommended for appointment by the local body of elders in consultation with the circuit overseer when he made one of his biannual visits. The circuit overseer would, however, have to seek the approval of the Britain branch before the appointment was confirmed. Ministerial servants assist the body of elders with routine organisational and physical tasks, including keeping the Kingdom Hall clean and tidy, arranging the platform and microphones, operating the sound system, organising and making available to the congregation literature, serving as attendance at meetings in the Kingdom Hall, assisting in emptying contribution boxes and in counting and keeping the books relating to donations, managing territory records to help coordinate ministry and other tasks to which they may be assigned from time to time by the elders. Ministerial servants could also be assigned other more responsible tasks by the elders, including assisting an elder in leading a congregation book study group, handling certain talks at mid-week congregation meetings or delivering 45-minute Bible-based talks at public meetings usually held at the weekend.
97. A body of Elders made up of mature spiritual men is carefully selected and approved for appointment based on scriptural qualification set out in 1 Timothy 3:1–7 and Titus 1:5–9. An elder will have been baptised for many years and will previously have served as a ministerial servant. During the period relevant to this claim, they were recommended for appointment by the body of elders in consultation with the circuit overseer. As with ministerial servants, the appointment required the approval of the Britain branch. The primary role of elders is to guide and protect the congregation spiritually, including taking the lead in evangelising and presiding over congregational meetings.
98. As to the authority and status of elders, Mr Schofield says:
'The teachings of Jehovah's Witnesses do not require or even encourage individuals to follow instructions from an elder (or anyone else) that are not in harmony with Bible teachings and principles (Acts 5:29; Matthew 23:10).
The teachings and practices of Jehovah's Witnesses have never required that one act as a confidant to a member of the opposite sex to him if they are not related or married, and specifically caution a woman from associating alone with any man to whom she is not related or married.'
'When it comes to the "shepherding" of a person of the opposite sex, elders have been specifically directed for many years to do so only in twos, never alone.' (Emphasis in original.)
99. Mr Schofield refers at this point to two articles in Watchtower. The first, published on 15 November 1991 and entitled 'An overseer must be self-controlled', includes the following passage:
'Elders must be keenly alert to exercise self-control when it comes to their dealings with those of the opposite sex. It is inadvisable for an elder to make a shepherding call on a sister alone. The elder should be accompanied by another elder or a ministerial servant. Likely appreciating this problem, Paul counselled the elder Timothy: "Entreat… older women as mothers, younger women as sisters with all chasteness" (1 Timothy 5:1, 2). Some elders have been seen putting their hands on a sister as if with a fatherly gesture. But they could be deceiving themselves, for a romantic impulse instead of pure Christian brotherly affection could well be motivating such a gesture. – Compare 1 Corinthians 7:1.'
The second article, published on 15 September 1989 and entitled 'Elders guard your trust', says this:
'Sexual immorality is another pitfall to avoid. The world's moral decay can influence even an elder if he does not resist the temptations used by Satan in his efforts to break the integrity of God's people. (Compare Matthew 4:1–11; 6:9, 13.)'
Mr Schofield says that, while ministerial servants and elders have a measure of spiritual responsibility and authority in the congregation, the Bible teaches that 'more than usual [is] demanded of [them]' (Luke 12:48, Hebrews 13:17, James 3:1).
100. The Bible teaches that some serious sins, such as sexual immorality (including rape and child sexual abuse), blasphemy, apostasy, idolatry and similar gross sins, require more than forgiveness from an offended individual (1 Corinthians 6:9, 10; Galatians 5:19-21). Because the spiritual and moral cleanness of the congregation is threatened, the Bible requires that such sins must be handled by the elders (1 Corinthians 5:6; James 5:14, 15). Individuals may approach the elders to confess their own sin or to report what they know regarding the wrongdoing of others (Leviticus 5:1; James 5:6). Where such a report is made, elders will be appointed to look into the matter. At this point Mr Schofield referred to a document outlining training for elders delivered in the period September 1998 to February 1999. It instructs elders in how to deal with allegations of child sexual abuse and says this:
'When is it not advisable for the witness to confront the accused alone? What should the elders do? (When he is a party to the wrongdoing, as a victim, or is extremely timid. Children who are victims of molestation should not be required to confront the accused. In some cases two elders or an elder and the witness can confront the accused.)
101. Mr Schofield explained that in conducting the spiritual investigation of an allegation of serious sin, the elders apply the Bible's rule of evidence which requires 'the testimony of two witnesses' (Deuteronomy 19:5; Matthew 18:16; 1 Timothy 5:19). This means that, in the absence of a confession, the allegation must be corroborated by a second witness for the congregation to take internal ecclesiastical judicial action. For these purposes, it is sufficient if the second witness attests to a separate allegation of a similar nature against the same accused person. If an accusation is evidenced in this way, the body of elders would assign a congregation judicial committee of at least three elders to handle the matter. Mr Schofield says:
'The decision of the body of elders as to whether an accusation is Scripturally established does not in any way affect the absolute right of any person within or outside the congregation to report the matter to the appropriate statutory authorities, including the police. Elders are advised to make this clear to any person who comes to them with allegations of child abuse.
It is important to understand that these internal congregation Bible based procedures focus on the wrongdoer's relationship with God and the wrongdoer's congregation status as one of Jehovah's witnesses. They are not a substitute or replacement for the criminal investigation and prosecution processes. Jehovah's Witnesses do not shield child abuses from the consequences of their sins. On the contrary, Jehovah's Witnesses acknowledge and accept the authority of the state to investigate and prosecute any alleged crimes (Romans 13:1-4). In cases where the police investigate a crime that is also a Scriptural sin warranting congregation action, elders are usually directed to await the outcome of the criminal proceedings before concluding their spiritual investigation. This may include the wrongdoer not been given any congregation responsibilities until the criminal matter is resolved. This was the advice to elders at the material time.'
104. In cross-examination, Mr Schofield was asked in particular about the status and position of elders. He said that elders were appointed to shepherd the congregation. They could administer warnings if a member of the congregation was straying from the teachings of Jehovah. The role of elder was held in high regard both by the congregation and by those who held it. Elders should be examples to other members of the congregation."
"1. Jehovah has provided overseers for his organisation in this 'time of the end' (Daniel 12:4). They take the lead in caring for sheeplike ones, and their supervision is refreshing (Isaiah 32:1, two). Moreover, loving oversight by elders who treat God's flock with tenderness serves as a protection from Satan and this wicked system of things – Acts 20:28-30; 1 Peter 5:8; 1 John 5:19.
2. But how do you view the elders? In your heart, do you say: 'I will never go to another elder in this congregation if I have a problem, for I have no confidence in any of them'? If that is how you feel, could you be over emphasising their imperfections? ...
3. Since Christian undershepherds have been provided by the Great Shepherd, Jehovah God, how do you think he wants us to view them? Surely, God expects us to follow the Bible-based direction received through loving overseers under the supervision of the governing body of Jehovah's Witnesses. Then 'the Lord will be with the spirit we show,' We will enjoy peace, and we will be built up spiritually – 2 Timothy 4:22; compare Acts 9:31; 15:23-32.
4. Paul urged: 'remember those who are taking the lead among you, who have spoken the word of God to you, and as you contemplate how their conduct turns out imitate their faith' (Hebrews 13:7). Among the early Christians, the apostles primarily took the lead. Today, we can observe those making up the governing body of Jehovah's Witnesses, other anointed overseers, and men of the 'great crowd' who take the lead and manners (Revelation 7:9). Although we are not urged to imitate their voice quality, posture, or other human traits, we should be able to make our conduct turn out well by imitating their faith.
6. Overseers have been spirit-appointed to care for the spiritual needs of the congregation (Acts 20:28). They see to it that the kingdom message is preached in the territory of the local congregation. These scripturally qualified men also provide spiritual direction in a loving manner. The exhort, console, and bear witness to their spiritual brothers and sisters, to the end that these might go on walking worthily of God (1 Thessalonians 2:7, 8, 11, 12). Even when someone takes a full step before he is aware of it these men seek to readjust him 'in the spirit of mildness' – Galatians 6:1.
7. Our hearts are motivated to cooperate with such loving overseers. This is fitting, as Paul wrote: 'be obedient to those who are taking the lead among you and be submissive, for they are keeping watch over your souls as those who will render an account; that they may do this with joy and not with saying, for this would be damaging to you' (Hebrews 13:7). How are we to understand this counsel?
8. Paul urges us to obey those governing us spiritually. We are to 'be submissive,' to yield to these undershepherds…
9. Jehovah would be displeased if we failed to be obedient and submissive to Christian overseers. This would also prove burdensome to them and would harm us spiritually. If we were uncooperative, the elders might care for their duties with sighing, perhaps in a spirit of discouragement that could result in a loss of joy in our Christian activities. But our obedience and submissiveness promote godly conduct and strengthen our faith…
12. We will be helped to obey and honour those taking the lead if we remember that God himself has provided the elders (Ephesians 4:7-13)…
Why Appreciate Their Service?
13. In the world, there is a tendency to reject leadership. As one lecturer said: 'the rising education level has improved the talent pool such that followers have become so critical that they are almost impossible to lead.' But 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. For instance, only those meeting scriptural requirements are appointed as elders (one Timothy 3:1-7). They are trained to be kind, loving, and helpful, yet firm in upholding Jehovah's righteous standards. The elders adhere to scriptural truth, 'holding firmly to the faithful word, that they may be able to exhort by healthful teaching' (Titus 1:5-9). Of course, we should not magnify the human imperfections, for all of us are imperfect (1 Kings 8:46; Romans 5:12). Instead of feeling frustrated by their limitations and treating their counsel lightly, let us appreciate and accept the Bible-based direction of the elders as coming from God."
"Mr Schofield accepted that the Watchtower article was an accurate summary of the beliefs of Jehovah's Witnesses. He emphasised, however, that members of the congregation were not required to give unquestioned obedience to elders. The obligation to be 'submissive' applied only to those instructions which were in accordance with the scriptures. Members of the congregation were required to apply their own Bible-trained consciences before simply obeying the instruction or guidance of an elder. Submission, he said, was not the same as subjugation."
Vicarious liability – the law
Maga v Archbishop of Birmingham and Anr  1 WLR 1441 ("Maga")
"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 non-church 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."
Catholic Child Welfare Society and Others v Various Claimants and the Institute of Brothers of the Christian Schools and Others  UKSC 56 ("Christian Brothers")
i) The relationship between the tortfeasor and the parties said to be vicariously liable to determine whether it is one that is capable of giving rise to vicarious liability (stage 1);
ii) The connection that links the relationship between those two parties and the act or omission of the tortfeasor (stage 2).
"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."
"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  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."
"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."
E v English Province of Our Lady of Charity  QB 722 ("E")
i) The extent to which the organisation exercised control over the tortfeasor. This would involve looking at the degree of managerial control which is exercised over the activity, which may depend upon how far a person is integrated into the organisation of the enterprise. Another way of looking at the control test is to examine the degree to which the "employee" is accountable to the employer.
ii) Control by the contractor (tortfeasor) of himself. This involves looking at how the tortfeasor arranges his work, his use of assets, his payment etc;
iii) The organisation test, how far the activity is a central part of the employer's business from the point of view of the objectives of that business. The more relevant the activity is to the fundamental objectives of the business, the more appropriate it is to apply the risk to that business.
iv) The integration test, whether the activity is integrated into the organisational structure of the enterprise.
v) The entrepreneur test, is the person in business on his own account?
Cox v Ministry of Justice  UKSC 10 ("Cox")
"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.
"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."
"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."
Various Claimants v Barclays Bank Plc  UKSC 13 ("Barclays Bank")
"It seems to me obvious that in Cox the result was bound to be the same whether it was expressed in terms of the test stated in para 24 of Lord Reed's judgment or in terms of the 'sufficiently akin to employment' test. Indeed, the case for vicarious liability for torts committed by prisoners in the course of their work within the prison seems to me a fortiori the case for vicarious liability for the work done by employees for their employers."
"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."
Various Claimants v Wm Morrison Supermarkets Plc  UKSC 12 ("Wm Morrison")
"… 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."
A v Trustees of the Watchtower Bible and Tract Society  EWHC 1722 (QB) ("A")
"… 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."
Vicarious liability – the judgment of Chamberlain J
"… 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'."
"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."
"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."
"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 .
(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."
The appellant's submissions
The respondent's submissions
"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."
Findings of fact
Discussion and conclusions
i) whether the relationship between the tortfeasor and the party said to be vicariously liable is one that is capable of giving rise to liability;
ii) whether there is a sufficiently close connection between the relationship between the tortfeasor and the party said to be vicariously liable and the act or omission of the tortfeasor.
i) elders are the spiritual leaders of the congregation;
ii) 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;
iii) elders are the principal conduit through which the teachings of the faith are disseminated to congregations;
iv) in so far as a congregation of Jehovah's Witnesses acts as a body, it acts through its elders;
v) 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.
i) An organisation which confers on its leaders power and authority over others creates a risk those leaders will abuse that power and authority. This is true of a religious organisation as it is of a secular one. The teachings of Jehovah's Witnesses confer on elders 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.
ii) The organisation makes rules for all aspects of its adherents' lives and sets its leaders up as moral and spiritual exemplars. In so doing it imbues those leaders with power and authority even outside the confines of their religious activities. Of note, the evidence of Mr Schofield that publishers should reject instructions from elders that do not accord with biblical teachings was said by the judge as having to be seen in the 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 lead among us". The judge quoted from Watchtower (15 September 1989) that "[t]he elders adhere to scriptural truth" and that "we should not magnify [elders'] human perfections" and stated that 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, was founded on the evidence.
iii) Sexual abuse can be a form of abuse of power. 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". An organisation which confers on its leaders power over others creates the risk that they will abuse it in that way.
"(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 .
(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."
Lord Justice Males:
"As Lord Phillips noted in Catholic Child Welfare Society  2 AC 1, paras 83 and 85, the close connection test has been applied differently in cases concerned with the sexual abuse of children. 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."
"85. The majority of the House of Lords in Lister's case derived great assistance from the judgments in the Canadian cases of Bazley v Curry (1999) 174 DLR (4th) 45 and Jacobi v Griffiths (1999) 174 DLR (4th) 71, Lord Steyn even saying that, whenever the problem of vicarious liability for sex abuse is considered in future in the common law world, those judgments should be the starting point.
86. In Bazley's case 174 DLR (4th) 45 the court imposed liability on the operators of a residential care facility for emotionally troubled children. The employees had quasi-parental duties ranging from general supervision to more intimate duties such as bathing the children and putting them to bed. McLachlin J surveyed the law of vicarious liability and summarized her conclusions in the following way in para 46:-
'In summary, the test for vicarious liability for an employee's sexual abuse of a client should focus on whether the employer's enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. The test must not be applied mechanically, but with a sensitive view to the policy considerations that justify the imposition of vicarious liability – fair and efficient compensation for wrong and deterrence. This requires trial judges to investigate the employee's specific duties and determine whether they gave rise to special opportunities for wrongdoing. Because of the peculiar exercise of power and trust that pervade cases such as child abuse, special attention should be paid to the existence of a power or dependency relationship, which on its own often creates a considerable risk of wrongdoing.'
This exposition of the law is highly relevant to the position of Father Clonan in respect of whom there undoubtedly existed a 'power or dependency relationship' with the claimant arising from his position as a priest."
Lord Justice Bean: