Vicarious liability and "akin to employment" cases
The Supreme Court has held in Trustees of the Barry Congregation of Jehovah's Witnesses v BXB that the Jehovah's Witness organisation was not vicariously liable for the rape of a member of its congregation committed by an elder at his home. In coming to its decision the Court reviewed the relevant case law and summarised the legal principles on vicarious liability.
Mr and Mrs B attended services of the Barry Congregation of Jehovah's Witnesses where they became very close friends with Mr S and his family. Mr S was an elder, a member of the congregation with special responsibilities. Over time Mr S's behaviour changed, he began abusing alcohol and appeared depressed. He began flirting with Mrs B and confiding in her. Concerned about his behaviour Mrs B spoke to his father, also an elder, who said that Mr S was suffering from depression and needed support. At a later date, Mr and Mrs B and Mr and Mrs S took part in door-to-door evangelising. After that they went to a pub where Mr S and his wife argued and then they convened at Mr S's house. Mr S went into a back room and his wife asked Mrs B if she would speak to him. Mrs B did so and, during a conversation, Mr S pushed Mrs B to the floor and raped her. In 2014 he was convicted of raping Mrs B and she brought a personal injury claim against the worldwide governing body of the Jehovah's Witnesses and the trustees of the Barry Congregation, claiming that they were vicariously liable for the rape committed by Mr S. The Court accepted that, had it not been for the fact that Mr S was an elder and that Mrs B had received instruction from another elder to provide him with support, their friendship would have come to an end and so vicarious liability was established. This decision was upheld by the Court of Appeal and the trustees of the Barry Congregation appealed to the Supreme Court.
The Supreme Court concluded that there was not a sufficiently close connection between the acts that Mr S as an elder of the Jehovah's Witnesses was authorised to do and his rape of Mrs B to give rise to vicarious liability. In coming to its decision the Court revisited the two-stage test applied in cases of vicarious liability. The first stage is to ask whether the relationship between the primary wrongdoer and the person alleged to be liable is one which is capable of giving rise to vicarious liability. Is the relationship sufficiently akin to employment for it to be just and fair to impose liability? In this instance the relationship between the Jehovah's Witness organisation and Mr S was akin to employment; he was carrying out work on behalf of the organisation and performing duties which were in furtherance of and integral to the aims and objectives of the organisation. The second stage is then to ask whether there's a sufficient connection between the torts in question and the employment/quasi-employment to impose liability. Here Mr S was not carrying out his activities as an elder on behalf of the Jehovah's Witnesses, and was not exercising control over Mrs B because of his position as an elder (instead he was abusing his position as a close friend of Mrs B when she was trying to help him).
The Supreme Court advised that, in difficult cases, the 2-stage test should be applied and then consideration should be given to whether the outcome is consistent with the underlying policy objectives of vicarious liability. The question to ask is whether the employer/quasi-employer who is taking on the benefit of the activities carried on by a person integrated into its organisation, should bear the cost (or the risk) of the wrong committed by that person in the course of those activities.
Take note: The Supreme Court's decision is a useful reminder of how to approach the issue of vicarious liability. It will be necessary to undertake a close consideration of the links between the wrongful act and the wrongdoer's authorised activities. In this instance there wasn't a sufficient connection.