Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 (26 April 2023)

(i) The relevant law on vicarious liability was to be gleaned from several recent decisions including those of the Supreme Court in Christian Brothers, Cox and Mohamud. It is to be noted that Chamberlain J was examining the law prior to the two latest relevant Supreme Court decisions in Barclays Bank and Morrison.

(ii) The first stage of the vicarious liability inquiry (which Chamberlain J saw as focussing on “whether the relationship between the defendants and Mark Sewell, one of their elders, was capable of giving rise to vicarious liability” (para 157)) was satisfied. This was because, first, Mark Sewell carried on activities as an integral part of the “business” activities carried on by the defendants and for their benefit and, secondly, the commission of the rape was a risk created by the defendants by assigning those activities to Mark Sewell.

(iii) The second stage of the vicarious liability inquiry was also satisfied. “The rape was … sufficiently closely connected to Mark Sewell’s … [position as elder] to make it just and reasonable that the defendants be held vicariously liable for it” (para 174). The judge’s more precise reasoning (see para 173) included that: (a) Mark Sewell’s position as a 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 elder, Mr and Mrs B would probably not have remained friends with Mark Sewell by the time of the rape; (c) the defendants significantly increased the risk that Mark Sewell would sexually abuse Mrs B by creating the conditions (including by Tony Sewell’s implied instruction that she continue to act as Mark’s confidante) in which the two might be alone together; (d) the rape took place in circumstances closely connected to the carrying out by Mark Sewell and Mrs B of religious duties; and (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.

4. The decision of the Court of Appeal

The second defendants, the Trustees of the Barry Congregation, appealed to the Court of Appeal against Chamberlain J’s decision on vicarious liability. The Court of Appeal (Bean, Nicola Davies and Males LJJ) unanimously dismissed the appeal: [2021] EWCA Civ 356, [2021] 4 WLR 42. In agreement with Chamberlain J, it was held that both stages of the vicarious liability inquiry were satisfied. Nicola Davies LJ gave the leading judgment. Males LJ, in his concurring judgment, agreed with Nicola Davies LJ’s reasoning on the first stage but, at the second stage, found the issue “more nuanced” (para 91) and therefore set out his own reasoning at some length. Bean LJ, in a short concurring judgment, agreed with Chamberlain J and with the reasoning of both Nicola Davies LJ and Males LJ.

Nicola Davies LJ’s essential reasoning was as follows:

(i) The relevant law on vicarious liability was to be derived from the cases referred to by Chamberlain J but she went on to refer also to the most recent Supreme Court decisions in Barclays Bank and Morrison.

(ii) At the first stage of the vicarious liability inquiry the question was whether the relationship between elders and the defendants was one that was capable of giving rise to vicarious liability. In Christian Brothers, the test applied was whether the relationship was sufficiently akin to that of employer and employee to satisfy stage 1. Nicola Davies LJ referred to Lord Phillips’ identification of five policy reasons for imposing vicarious liability but she went on, at para 72:

“critically at para 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 hierarchical 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.”

Nicola Davies LJ continued at para 73:

“It is clear from the evidence … 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.”

She considered that Chamberlain J had carried out a “searching inquiry” (para 75) as to the role of elders within the Jehovah’s Witness organisation and his findings were clear and cogent and reflected the evidence. The judge had been entitled to make the findings which led him to the view that the commission of the rape was a risk created by the defendants in assigning the activities of an elder to Mark Sewell (paras 78-79). The relationship in this case was analogous to the relationship in Christian Brothers. At para 81, she concluded as follows on stage 1:

“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.”

(iii) At the second stage of the vicarious liability inquiry, Nicola Davies LJ thought that on the facts “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.” (para 84) She accepted as the basis for satisfying the test of close connection, the three conclusions of the judge set out at para 24(iii)(a) (b) and (c) above.

Males LJ agreed with Nicola Davies LJ’s reasoning on stage 1. His reasoning on stage 2 was slightly different. He recognised that the correct close connection test was the test confirmed by the Supreme Court in Morrison albeit that it needed some modification because sexual abuse cannot be regarded as something done in the ordinary course of employment (para 92). The two essential issues in applying that test were whether Mark Sewell’s status as an elder placed him in a position of power or authority over Mrs B and whether the rape was an abuse of that position as distinct from being unconnected with his status as an elder (para 97). There were then four key factors in addressing those issues. The first was that ordinary members of the congregation (such as Mrs B) were required to be obedient and submissive to the elders. Secondly, it was apparent that the elders knew of and permitted sexually inappropriate behaviour (kissing female members on the lips) on the part of Mark Sewell when acting as an elder in welcoming members of the congregation. Thirdly, there was the raising of the concerns about Mark Sewell with Tony Sewell, also an elder, and his response to that. Fourthly, had it not been for Mark Sewell’s status as an elder and Tony Sewell’s instruction, Mr and Mrs B would have cut off contact with Mark. When the circumstances of the rape were seen in the context of those four factors:

“it is apparent in my judgment that the rape occurred because of Mark Sewell’s status as an elder, without which the two couples would have ceased to associate and without which Mrs B would never have approached him in the back room where the rape occurred. She did so because, and only because, despite the sexually inappropriate behaviour which he had demonstrated, of which the other elders including in particular Tony Sewell were aware, she had been taught that an elder has a special status in the community of Jehovah’s Witnesses and had been instructed that it was her religious duty towards Mark as an elder to act as a friend and confidante to him in his depression.” (para 105)

Modifying the test in Morrison, Males LJ concluded as follows at para 106:

“The rape was sufficiently closely connected with Mark Sewell’s status as an elder that it may fairly and properly be regarded as an abuse of the authority over Mrs B conferred on him by that status, such that the defendants who had conferred that authority on him should be vicariously liable.”

It is important to add that Males LJ had earlier made clear at para 103 that there were significant factors pointing against vicarious liability:

“As the judge acknowledged, Mrs B was an adult married woman who was 29 years old and it was her decision to continue to associate with Mark Sewell despite his unacceptable behaviour. In fact she did have a choice whether to continue to associate with him, although it is fair to say that ending the friendship might have made it difficult for her and her husband to remain as members of the Barry Congregation and would therefore have carried a considerable spiritual cost. Moreover, the rape did not occur while Mark Sewell was performing any religious duty. It is true that, earlier in the day, the two couples had been “pioneering” (evangelising door-to-door), but since then much had happened … It can therefore be said that the rape occurred when the two couples were choosing to be together on an essentially social occasion, albeit one which must have been awkward in view of what had occurred. There is, therefore, at least an argument that by the time of the rape Mark Sewell’s status as an elder had somewhat faded into the background. Further, the rape itself did not involve, as the child grooming cases have, any kind of acquiescence by Mrs B because Mark Sewell was an elder. On the contrary, he forced himself on her violently.”

He also clarified that, unlike the judge, he was not relying on the factors set out at para 24(iii)(a) and (d) above.

5. The modern law on vicarious liability

(1) The cases as from 2001 in the House of Lords and Supreme Court prior to Barclays Bank and Morrison

The modern expansion of vicarious liability started in Lister. The warden of a school boarding house had systematically sexually abused the claimants. The claimants were boys, at the time aged 12 -15, who were residents in the boarding house and were in the warden’s care. The employers of the warden were held vicariously liable for the torts committed against the claimants by the warden. The important development of the law by the House of Lords was to recognise (at stage 2 of the vicarious liability inquiry) the “close connection” test. Although it might be difficult to describe the warden’s torts as falling within the classic test formulated by Salmond, Law of Torts, 1^st ed (1907) p 83, of the tort being an unauthorised mode of carrying out an authorised act, it was sufficient for vicarious liability if the warden’s torts were closely connected with his employment. This “close connection” test drew on additional words of Salmond and on the Canadian Supreme Court case of Bazley v Curry [1999] 2 SCR 534. Lord Steyn (with whom Lord Hutton agreed) said, at para 28:

“The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in [the boarding house].”

In Lord Millett’s words, at para 70, “What is critical is that attention should be directed to the closeness of the connection between the employee’s duties and his wrongdoing…” He then explained that, here, the duties of the warden were precisely to take care of the boys. At para 82, his Lordship went on:

“He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys.”

Lord Hobhouse in his speech warned against confusing the policy reasons underlying vicarious liability and the rules defining the criteria for the application of the doctrine. He said at para 60:

“an exposition of the policy reasons for a rule … is not the same as defining the criteria for its application. Legal rules have to have a greater degree of clarity and definition than is provided by simply explaining the reasons for the existence of the rule and the social need for it, instructive though that may be.”

The next important case in the House of Lords could not have been further removed from the facts of Lister. It was a commercial case involving a partnership. In Dubai Aluminium Co Ltd v Salaam (“Dubai Aluminium”) [2002] UKHL 48, [2003] 2 AC 366 it was held that a partnership was vicariously liable, under section 10 of the Partnership Act 1890, for the equitable wrong of dishonest assistance in a breach of fiduciary duty committed by one of the partners. Although focusing on the words in section 10, “acting in the ordinary course of business of the firm”, Lord Nicholls, giving the leading speech, looked at vicarious liability generally and said the following (in relation to stage 2 of the vicarious liability inquiry) at para 23:

“the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.”

He recognised that this “close connection” test was imprecise but that this was inevitable given the infinite range of circumstances where the issue arises. He went on to say at para 26:

“Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable.”

Although primarily deciding that vicarious liability can extend to a claim for damages for breach of statutory duty under the Protection from Harassment Act 1997, Lord Nicholls, giving the leading judgment in Majrowski v Guy’s and St Thomas’s NHS Trust (“Majrowski”) [2006] UKHL 34, [2007] 1 AC 224, para 10, confirmed the close connection test set out in Lister and Dubai Aluminium.

In Christian Brothers, we return to the sexual abuse of children. The claimants had been boys at a Roman Catholic residential school who had been sexually abused by members of the Christian Brothers who lived and taught at the school. The Christian Brothers were lay members of a Roman Catholic Institute, the Institute of the Brothers of the Christian Schools (De La Salle) which one can refer to as the Christian Brothers Institute. That was an unincorporated association concerned with teaching children. The Christian Brothers were unpaid as such but their material needs were met by the Christian Brothers Institute and they were provided with accommodation and food at the residential schools at which they taught. By the time the case reached the Supreme Court it was no longer in dispute that the diocesan bodies (eg the Catholic Child Welfare Society), who were responsible under statute for the management of the school and had contracts of employment with the Christian Brothers in question, were vicariously liable for the abuse by the Christian Brothers. The principal question for the Supreme Court was whether the Christian Brothers Institute was also vicariously liable for that abuse. Both stages of vicarious liability were under scrutiny. It was held that the Institute was vicariously liable.

At stage 1, the Supreme Court laid down (with the single judgment being given by Lord Phillips, with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Carnwath agreed) that the correct question was whether the relationship between the defendant and the tortfeasor was one that was “akin to employment” (using the terminology adopted by Ward LJ in the Court of Appeal in E v English Province of Our Lady of Charity [2012] EWCA Civ 938, [2013] QB 722). In applying that test, it was held (especially at paras 56-57) that the relationship between a Christian Brother and the Christian Brothers Institute was akin to employment because it had all the essential elements of an employment relationship. That is, there was a hierarchical structure, the Brothers were directed to undertake the teaching activity, they were doing so in furtherance of the objectives of the Institute, and they were required to conduct themselves as teachers within the rules of the Institute. It did not matter that the Brothers were not paid as such and that they were bound to the Institute by vows rather than by contract.

At stage 2, it was held that the close connection test was also satisfied. Lord Phillips, at para 76, referred to the words of Lord Nicholls at para 23 in the Dubai Aluminium case (set out in para 33 above) and made clear that the courts were “tailoring” (para 83) this area of the law to emphasise the importance of criteria that were particularly relevant to sexual abuse. He recognised that the precise criteria required, in the context of sexual abuse, were “still in the course of refinement by judicial decision” (at para 85). He said that what weighed with the courts was 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” (at para 84).

Throughout his analysis, Lord Phillips referred both to the criteria for satisfying vicarious liability and the policy reasons for the doctrine, and he expressed the view, at para 34, that it was important to consider both. At para 35, he identified five policy reasons (or “incidents” as he referred to them at para 47) explaining the vicarious liability of employers: the deep pockets of the employer, that the activity is being undertaken on behalf of the employer, that the activity is part of the business of the employer, that the employer has created the risk of the tort, and the control of the employer over the employee. In his words at para 35:

“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 …: (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.”

Earlier at para 21, Lord Phillips also referred to there being a “synthesis” of the two stages in the sense that stage 2 linked to stage 1. This was because, at stage 1, one was identifying the relationship between the tortfeasor and the defendant and then, at stage 2, one was asking whether there was a close connection between that relationship (identified at stage 1) and the commission of the tort.

There then followed two cases, handed down on the same day, neither dealing with sexual abuse, in which the Supreme Court sought to clarify where the law on vicarious liability had reached as regards, respectively, stage 1 and stage 2. In both cases vicarious liability was held to be established.

In the first case, Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660, the stage 1 test was held to be satisfied so that the Ministry of Justice, or more specifically the prison service, was held vicariously liable for the tort of negligence committed by a prisoner carrying out work in a prison kitchen. The tort was committed when, after being instructed to stop work while a spillage of rice was cleared away, the prisoner carried on work and, in attempting to go past the spillage, negligently dropped a heavy bag of rice on the claimant’s back injuring her.

Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agreed) took his lead from the judgment of Lord Phillips in Christian Brothers. Primarily concentrating on the five policy reasons underpinning vicarious liability, articulated by Lord Phillips at para 35 of his judgment (see para 38 above), Lord Reed made clear that the first and fifth of those policy factors (deep pockets and control) were of limited importance and it was rather the other three policy factors that were helpful in understanding the modern rationale for the doctrine. They were that the tort had been committed while acting on behalf of the employer and as part of the employer’s business and that the employer had thereby created the risk of the tort. Lord Reed pointed out that those three policy factors are inter-related and together give an underlying rationale for vicarious liability which, going beyond a relationship of employment, he expressed in the following way, at para 24:

“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.”

In terms of the criteria to be applied in determining whether the relevant relationship (between a prisoner, when assigned work, and the prison service) was akin to employment, the most important passage is at para 34 where Lord Reed said the following:

“when prisoners work in the prison kitchen, or in other workplaces such as the gardens or the laundry, they are integrated into the operation of the prison. The activities assigned to them … form part of the operation of the prison, and are of direct and immediate benefit to the prison service itself.”

Lord Reed also indicated that the sexual abuse of children is not a special category of case and that the general approach to vicarious liability applies to such cases (para 29). He also indicated that, where the criteria for the imposition of vicarious liability are satisfied, it would not routinely be necessary to go on to consider whether the result was fair, just and reasonable (para 41). But, having said that, he added at para 42:

“Where a case concerns circumstances which have not previously been the subject of an authoritative judicial decision, it may be valuable to stand back and consider whether the imposition of vicarious liability would be fair, just and reasonable.”

The other case, decided at the same time by the same panel of the Supreme Court, but with the leading judgment being given by Lord Toulson, was Mohamud. The claimant, having stopped at the petrol station at one of the defendant's supermarkets, went into the sales kiosk and asked the defendant's employee if it was possible to print off some documents which the claimant had stored on a USB stick. The employee refused the request in an offensive manner and, in the exchange of words which followed, he used racist, abusive and violent language towards the claimant and ordered him to leave. He then followed the claimant as he walked back to his car and, having told him never to return, subjected him to a serious physical attack. It was held that the stage 2 test was satisfied so that the defendants were vicariously liable for the tortious assault committed by their employee. The Supreme Court confirmed that the close connection test (whether the employee’s tort was so closely connected with his employment that it would be just to hold the employer liable) that had been laid down in Lister and confirmed in, eg, Dubai Aluminium was the correct test at stage 2. Lord Toulson pointed out, at para 42, that that test had also been approved in Majrowski and Christian Brothers as well as by the Privy Council in cases such as Brown v Robinson [2004] UKPC 56, (2004) 65 WIR 258 and Bernard v Attorney General of Jamaica [2004] UKPC 47, [2005] IRLR 398 (and, although not mentioned by Lord Toulson, there was also the Privy Council decision to the same effect in Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12, [2004] 1 WLR 1273, para 16). It is also noteworthy that, at para 44, Lord Toulson thought it helpful, in applying that test, to focus on “what functions or ‘field of activities’ have been entrusted by the employer to the employee, or, in everyday language, what was the nature of his job.”

Finally, in Armes, it was held that a local authority was vicariously liable (but not liable for breach of a non-delegable duty of care) for torts comprising sexual abuse committed by foster parents against a child in their care. The leading judgment was given by Lord Reed (with whom Lady Hale, Lord Kerr and Lord Clarke agreed, Lord Hughes dissenting). The sole issue for vicarious liability was at stage 1 because it was conceded by the local authority that, if stage 1 were satisfied, stage 2 would also be satisfied. In deciding that the test at stage 1 was satisfied, the most important passage is at para 60 where Lord Reed said the following:

“Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authority's organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority's statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.”

In looking at the justification for vicarious liability, Lord Reed noted that “deterrence” has not been advanced in the English case law as part of the policy behind vicarious liability. Instead, he referred to what has been termed in the academic literature as “enterprise risk” or “enterprise liability” (see, eg, Anthony Gray, Vicarious Liability: Critique and Reform, 1998, chapters 5-6) in the following passage at para 67:

“The most influential idea in modern times has been that it is just that an enterprise which takes the benefit of activities carried on by a person integrated into its organisation should also bear the cost of harm wrongfully caused by that person in the course of those activities.”

(2) Barclays Bank and Morrison

I now turn to the most recent Supreme Court cases which, as several years earlier with Cox and Mohamud, were heard by the same panels and were handed down on the same day. Barclays Bank was concerned with stage 1, while Morrison was concerned with stage 2. One may detect behind them an anxiety that the scope of vicarious liability was being widened too far and, in both cases, the Supreme Court reversed the Court of Appeal and held that there was no vicarious liability.

In Barclays Bank the defendant bank arranged for a doctor to carry out pre-employment medical examinations on the claimant job applicants, many of whom were teenagers applying for their first job on leaving school. The bank arranged the appointments, told the claimants when and where to go and provided the doctor with a pro forma report to fill in. The doctor was not paid a retainer by the bank, but was paid a fee for each report, and the work he did for the bank was a comparatively minor part of his portfolio practice. The examinations took place in a consulting room in the doctor's house. The claimants alleged that they were sexually assaulted in the course of those examinations. They sought damages for personal injury from the bank on the basis that it was vicariously liable for the assaults.

Lady Hale gave the leading judgment (with which Lord Reed, Lord Kerr, Lord Hodge and Lord Lloyd-Jones agreed). She made clear that the expansion of vicarious liability to include, at the first stage, whether the relationship was “akin to employment” did not extend to rendering an employer vicariously liable for the torts of “true independent contractors” (Lady Hale at para 29). The long-standing distinction drawn in the law of vicarious liability between employees and independent contractors remained of crucial importance. In this case when carrying out the medical examinations the doctor was acting as an independent contractor and was not an employee of the bank. She said at para 24:

“There is nothing, therefore, in the trilogy of Supreme Court cases discussed above [Christian Brothers, Cox and Armes] to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded.”

She also indicated at para 16, relying on what Lord Hobhouse had said in Lister (see para 32 above), that, although there had been a judicial tendency to do so, one should seek to avoid eliding the criteria or principles in applying the stage 1 test with the policy reasons underpinning vicarious liability as explored by Lord Phillips in Christian Brothers. She pointed out at para 18 that one can differentiate the two in Lord Phillips’ judgment and that in paras 56-57 (see para 36 above) Lord Phillips focused on the detailed features of the relationship, and its closeness to employment, and not on the five underlying policies to which he had earlier referred.

At para 27, she concluded:

“The question therefore is … 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. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer's business. But the key, as it was in Christian Brothers [2013] 2 AC 1, Cox [2016] AC 660 and Armes [2018] AC 355, will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”

In Morrison, the defendant company was requested by its external auditors to provide them with a copy of its payroll data. Accordingly, a copy of the data was transmitted to one of the defendant's employees, Mr Skelton, an internal auditor, for the sole purpose of passing it on to the external auditors. The internal auditor carried out that task but also unlawfully copied the data and uploaded it onto a publicly accessible website, in pursuance of a vendetta against the defendant and intending thereby to cause harm to the defendant. On the day when the defendant's financial results were due to be announced, the internal auditor also sent the data to a number of national newspapers. The claimants, employees of the defendant whose personal data had been disclosed, brought claims against the defendant for damages for breach of confidence and misuse of private information on the basis that the defendant was vicariously liable for the internal auditor's wrongdoing. It was held at stage 2 that the employee’s wrongful conduct was not so closely connected with acts that the employee was authorised to do as to render the defendant vicariously liable.

Lord Reed gave the leading judgment (with which Lord Kerr, Lord Hodge, Lord Lloyd-Jones and Lady Hale agreed). He clarified that, at stage 2, where one was dealing with an employee, and in line with what was articulated in Lister, the appropriate test was that set out by Lord Nicholls in Dubai Aluminium:

“the wrongful conduct must be so closely connected with acts the employee was authorised to do that … it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment” (paras 23, 25, 31 and 47).

At para 24, Lord Reed added the following:

“The general principle set out by Lord Nicholls in Dubai Aluminium, like many other principles of the law of tort, has to be applied with regard to the circumstances of the case before the court and the assistance provided by previous court decisions. The words ‘fairly and properly’ are not, therefore, intended as an invitation to judges to decide cases according to their personal sense of justice, but require them to consider how the guidance derived from decided cases furnishes a solution to the case before the court. Judges should therefore identify from the decided cases the factors or principles which point towards or away from vicarious liability in the case before the court, and which explain why it should or should not be imposed. Following that approach, cases can be decided on a basis which is principled and consistent.”

He went on to explain that Lord Toulson’s judgment in Mohamud was consistent with this. For example, Lord Toulson was not suggesting “that all that was involved in determining whether an employer was vicariously liable was for the court to consider whether there was a temporal or causal connection between the employment and the wrongdoing” (para 26). Moreover, Lord Toulson should not be interpreted as having indicated that the tortfeasor’s motives are always irrelevant. On the facts of this case, the motive of the employee - he was pursuing a vendetta against his employer - was highly material.

Applying the stage 2 close connection test to the facts, Morrison was not vicariously liable. In Lord Reed’s words at para 47:

“In the present case, it is abundantly clear that Skelton was not engaged in furthering his employer's business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking vengeance for the disciplinary proceedings some months earlier. In those circumstances, applying the test laid down by Lord Nicholls in Dubai Aluminium in the light of the circumstances of the case and the relevant precedents, Skelton's wrongful conduct was not so closely connected with acts which he was authorised to do that, for the purposes of Morrisons’ liability to third parties, it can fairly and properly be regarded as done by him while acting in the ordinary course of his employment.”

6. Summary of the modern law on vicarious liability

Having examined the main 21^st century decisions on vicarious liability of the highest court, it is now possible to pull together the legal principles applicable to vicarious liability in tort that can be derived from those authorities particularly the most recent cases of Barclays Bank and Morrison.

(i) There are two stages to consider in determining vicarious liability. Stage 1 is concerned with the relationship between the defendant and the tortfeasor. Stage 2 is concerned with the link between the commission of the tort and that relationship. Both stages must be addressed and satisfied if vicarious liability is to be established.

(ii) The test at stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship. But in applying the “akin to employment” aspect of this test, a court needs to consider carefully features of the relationship that are similar to, or different from, a contract of employment. Depending on the facts, relevant features to consider may include: whether the work is being paid for in money or in kind, how integral to the organisation is the work carried out by the tortfeasor, the extent of the defendant’s control over the tortfeasor in carrying out the work, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, what the situation is with regard to appointment and termination, and whether there is a hierarchy of seniority into which the relevant role fits. It is important to recognise, as made clear in Barclays Bank, that the “akin to employment” expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant.

(iii) The test at stage 2 (the “close connection” test) is whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment. This is the test, subject to two minor adjustments, set out by Lord Nicholls in Dubai Aluminium, drawing on Lister, and firmly approved in Morrison. The first adjustment is that, to be comprehensive, it is necessary to expand the test to include “quasi-employment” as one may be dealing with a situation where the relationship at stage 1 is “akin to employment” rather than employment. The second adjustment is that it is preferable to delete the word “ordinary” before “course of employment” which is superfluous and potentially misleading (eg none of the sexual abuse cases can easily be said to fall within the “ordinary” course of employment) and was presumably included by Lord Nicholls because “in the ordinary course of business” were the words in section 10 of the Partnership Act 1890. The application of this “close connection” test requires a court to consider carefully on the facts the link between the wrongful conduct and the tortfeasor’s authorised activities. That there is a causal connection (ie that the “but for” causation test is satisfied) is not sufficient in itself to satisfy the test. Cases such as Lister and Christian Brothers show that sexual abuse of a child by someone who is employed or authorised to look after the child will, at least generally, satisfy the test. But, as established by Morrison, the carrying out of the wrongful act in pursuance of a personal vendetta against the employer, designed to harm the employer, will mean that this test is not satisfied.

(iv) As made particularly clear by Lady Hale in Barclays Bank, drawing on what Lord Hobhouse had said in Lister, the tests invoke legal principles that in the vast majority of cases can be applied without considering the underlying policy justification for vicarious liability. The tests are a product of the policy behind vicarious liability and in applying the tests there is no need to turn back continually to examine the underlying policy. This is not to deny that in difficult cases, and in line with what Lord Reed said in Cox, having applied the tests to reach a provisional outcome on vicarious liability, it can be a useful final check on the justice of the outcome to stand back and consider whether that outcome is consistent with the underlying policy. What precisely the underlying policy is has been hotly debated over many years by academics and judges alike. See, for example, PS Atiyah, Vicarious Liability in the Law of Torts (1967) chapter 2; Jason Neyers, “A Theory of Vicarious Liability” (2005) 43 Alberta Law Review 287; Anthony Gray, Vicarious Liability: Critique and Reform (2018); Vicarious Liability in the Common Law World (ed Paula Giliker, 2022). As we have seen at para 38 above, Lord Phillips referred to five policies in Christian Brothers but, as Lord Reed recognised in Cox, a couple of those have little, if any, force. At root the core idea (as reflected in the judgments of Lord Reed in Cox and Armes: see paras 42 and 47 above) appears to be that the employer or quasi-employer, who is taking the benefit of the activities carried on by a person integrated into its organisation, should bear the cost (or, one might say, should bear the risk) of the wrong committed by that person in the course of those activities.

(v) The same two stages, and the same two tests, apply to cases of sexual abuse as they do to other cases on vicarious liability. Although one can reasonably interpret some judicial comments as supporting special rules for sexual abuse, this was rejected by Lord Reed in Cox. The idea that the law still needs tailoring to deal with sexual abuse cases is misleading. The necessary tailoring is already reflected in, and embraced by, the modern tests.

7. The application of the modern law to the facts of this case

(1) An initial question: who is the relevant defendant?

The appeal to the Court of Appeal and to this court was made by the second defendants, the Trustees of the Barry Congregation. But as Chamberlain J made clear at the outset of his judgment, the first defendant, the Watch Tower and Bible Tract Society of Pennsylvania, agreed that it would satisfy any judgment against the second defendants. And that agreement was embodied in an undertaking in the order made by Chamberlain J (dated 30 January 2020) and by the Court of Appeal (dated 25 March 2021). It was presumably for this reason that the lower courts did not think it necessary to investigate the precise relationship between the first and second defendants or the legal status of the second defendants or the structure of the Jehovah’s Witness organisation.

The first stage of the vicarious liability inquiry requires the court to consider whether Mark Sewell in his role as an elder was akin to being an employee. At the hearing, the court expressed its concern that it had not been provided with any details as to who precisely was the alleged “quasi-employer”. For example, the court had no clear information as to which body appointed Mark Sewell as an elder. It was also unclear who the Trustees of the Barry Congregation are, what their duties are, and in what capacity they were being sued.

Some attempt was made during the hearing to assist the court and further written information was supplied shortly after the hearing by counsel for the defendants. The picture that emerges is complex and in some respects remains unclear. But it is sufficient for the purposes of this appeal to make the following points:

(i) The Watch Tower Bible and Tract Society of Pennsylvania is a charitable corporation, formed in 1884, and supports the worldwide religious activities of the Jehovah’s Witnesses.

(ii) At the relevant time (and until 1999), the Watch Tower Bible and Tract Society of Pennsylvania had a Branch Office in Britain established under the Companies Act 1948. In 1965, that branch was registered as a charity with the Charity Commission of England and Wales. It was that ecclesiastical Britain Branch Office of Jehovah’s Witnesses (more particularly its service department), supervised by the ecclesiastical Britain Branch Committee, that appointed and removed elders in Britain. The service department would communicate the appointment (or removal) of an elder to the relevant congregation using the letterhead of the Watch Tower Bible and Tract Society of Pennsylvania. More specifically, at the relevant time, the power to appoint and remove elders within Britain was given by the Watch Tower Bible and Tract Society of Pennsylvania, through a power of attorney, to Mr Wilfred Gooch who was a member of the ecclesiastical Britain Branch Committee.

(iii) In August 1999, the Watch Tower Bible and Tract Society of Pennsylvania deregistered its Britain Branch. Since then a different structure has been in place.

(iv) The Barry Congregation was, at all relevant times, an unincorporated association. Counsel for the parties suggested in oral submissions that the Trustees of the Barry Congregation were being sued as representatives of all the members. It appears that the Trustees are elders of the Congregation. The Trustees have not been named and nor have the members of the Barry Congregation.

The conclusion to be reached from this is that in considering “quasi-employment” in this case, the body that one should most obviously be considering as the “quasi-employer” is the ecclesiastical Britain Branch Office of Jehovah’s Witnesses. But as at the relevant time that body was a branch of, and therefore acting on behalf of, the Watch Tower Bible and Tract Society of Pennsylvania, the latter was a correct defendant for the purposes of vicarious liability. It is not obvious that the Trustees of the Barry Congregation have been correct defendants. Although it may be said that some of the powers of the ecclesiastical Britain Branch Office of Jehovah’s Witnesses in relation to the day to day operation of the Jehovah’s Witnesses in Barry have been delegated to those Trustees it is hard to see how that, without the Trustees having any power to appoint or remove elders, could put them in the position of being a “quasi-employer” for the purposes of vicarious liability. It is conceivable that it was envisaged that there could be dual vicarious liability, as in Christian Brothers where the diocesan bodies (eg the Catholic Welfare Society) and the Christian Brothers Institute had dual vicarious liability (see para 35 above). But there is no indication of dual vicarious liability in the reasoning of the courts below in this case or in any of the submissions made to this court. Another possibility is that the original decision to sue the Trustees of the Barry Congregation was because of the claim in the tort of negligence (see para 21 above).

In any event, the first defendant at first instance (the Watch Tower Bible and Tract Society of Pennsylvania) was a correct defendant for the purposes of vicarious liability and it is that defendant that has undertaken to satisfy any judgment against the Trustees of the Barry Congregation. Moreover, it was clear at the hearing that neither counsel was taking any point about the possibility, on the one hand, of incorrect defendants having been sued or, on the other hand, of the appeal having been brought by the wrong defendants.

I can therefore proceed on the basis that the Watch Tower Bible and Tract Society of Pennsylvania, acting at the relevant time through its Britain Branch Office, is a correct defendant for the purposes of vicarious liability. It is also convenient shorthand to refer to that body, as James Counsell KC, counsel for the claimant, sometimes did, as the Jehovah’s Witness “organisation”.

(2) Stage 1 of vicarious liability

At the first stage of the vicarious liability analysis, the test to be applied is whether the relationship between the Jehovah’s Witness organisation and Mark Sewell, in his role as an elder, was akin to employment. In my view, the relationship was indeed akin to employment and the decisions of the lower courts were therefore correct at stage 1.

Although in his submissions Lord Faulks KC, counsel for the defendants, stressed that the work of an elder was unpaid, whether in money or benefits in kind (such as food and accommodation) - and that an elder was not even entitled to any expenses in carrying out his role - he stopped short of submitting that economic dependence was a necessary feature of a relationship being akin to employment. He was correct to do so. No doubt the fact that there is no payment for the work is an indicator that the relationship is not one akin to employment but it is far from being decisive. The important features here rendering the relationship akin to employment were as follows: that as an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organisation; that he was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation; that there was an appointments process to be made an elder and a process by which a person could be removed as an elder; and that there was a hierarchical structure into which the role of an elder fitted.

If one examines the features referred to by Lord Phillips in paras 56-57 of Christian Brothers (see para 36 above) one can see the similarity between the position of the Christian Brothers to the Institute in that case and the relationship between an elder and the Jehovah’s Witness organisation in this case. In both cases, there was a hierarchical structure, the tortfeasor was directed to undertake various activities, he was doing so in furtherance of the objectives of the organisation, and he was required to conduct himself within the rules of the organisation.

That there was here a relationship akin to employment is also strongly supported by the decision in A v Trustees of the Watchtower Bible and Tract Society and Others [2015] EWHC 1722 (QB). In that case, Globe J upheld a claim by a woman, A, against the Watch Tower Bible and Tract Society of Pennsylvania and against two congregations of which she had been a member. A had been sexually assaulted when a child between the ages of 4 and 9 by an individual who had at the time been a ministerial servant in her congregation. She claimed, first, that the defendants were vicariously liable for the assaults and, second, that they were vicariously liable for the acts of the elders who had failed to take steps to protect her once they knew that the ministerial servant had sexually assaulted another child in the congregation. Both claims succeeded (although, as at first instance in this case, there was no investigation by Globe J as to whether the congregations were correct defendants). Stage 1 was satisfied because, inter alia, “a ministerial servant is part and parcel of the organisation and integral to it” (para 69). Globe J also asked himself whether a ministerial servant could be considered more like an independent contractor than an employee and answered that in the negative. This was because:

“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.” (para 70)