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Has the expansion of vicarious liability been halted? The Supreme Court hands down its judgment in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB.

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By David Williams & William Swift


Published 05 May 2023


Recent years have seen a number of judgments on whether an employer or organisation should be vicariously liable for the actions of its employees or quasi-employees. On 26 April 2023, the Supreme Court handed down its judgment in the Barry Congregation case, confirming the boundaries of vicarious liability following the 2020 judgment in Various Claimants v Wm Morrison Supermarkets Plc.

The claimant sought damages following her being raped by an elder of the Barry Congregation. The claimant and her husband had become very close friends of the elder and his wife, having met through the elder’s position in their congregation. After a change in the elder’s behaviour, the claimant contacted the elder’s father who advised the claimant that the elder was suffering from depression and needed love and support.

After a morning of evangelising with the elder and his wife, the claimant and her husband went to the elder’s home. As the claimant went into a room to provide support to the elder, he raped her; the elder was prosecuted and convicted of the rape.

At first instance, the congregation was found to be vicariously liable for the actions of the elder, the Court finding that the relationship between the defendant and the elder was capable of giving rise to vicarious liability and that the rape was sufficiently closely connected to the elder’s position in the congregation to make it just and reasonable for the defendant to be held vicarious liable for it. This judgment was upheld by the Court of Appeal; the defendant was given permission to appeal to the Supreme Court.

The judgment of Lord Burrows, with which the other four Supreme Court Justices agreed, confirms the two-stage test required to determine whether a defendant should be vicariously liable for the actions of a tortfeasor.

First, a Court should consider whether the relationship between the defendant and tortfeasor is one of employment or akin to employment. In applying the ‘akin to employment’ test, the Court should consider whether the features of the relationship are akin to employment, which may include:

  • whether the work is being paid for in money or in kind;
  • how integral to the organisation the work carried out by the tortfeasor is;
  • 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 further in support 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.

Lord Burrows confirmed that it is important to recognise, as made clear in Various Claimants v 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.

The relationship between the elder and the defendant was akin to employment, with the Supreme Court upholding the decisions of the First Instance Judge and Court of Appeal in this respect.

Second, the Court should consider the ‘close connection’ test, established in Various Claimants v Wm Morrison Supermarkets Plc, i.e. 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 whilst acting in the course of the tortfeasor’s employment or quasi-employment.

In considering this test, Lord Burrows noted that the rape did not occur as the elder was carrying out any activities connected with his role and instead took place in his own home. It occurred at a point in time when the elder was not exercising control over the claimant because of his position as an elder; they were in the same room due to their close friendship, and the elder was not wearing his metaphorical uniform at the time of the rape.

Whilst, but for his position as an elder, the claimant and the elder would not have formed a close friendship, this the Supreme Court ruled was insufficient to satisfy the close connection test.  The close connection test had not been satisfied as the rape was not so closely connected with acts the elder was permitted to do for it to be fairly and properly regarded as committed in the course of his quasi-employment as an elder.

The final paragraph of the judgment provides a check, stepping back and noting that there is no convincing justification for the defendant to be required to bear the cost or risk of the rape; there is no justification for extending the boundaries of vicarious liability beyond the principled boundaries already in existence.

This judgment confirms the test to be used in vicarious liability cases, providing clarity in this area and confirming that organisations should not be vicariously liable for independent contractors, for acts carried out designed to harm the defendant, or for acts which are not closely connected with the activities a tortfeasor is authorised to do. It also arguably, halts what some have viewed as the recent widening of the scope of vicarious liability and the apparent view that a reason to expand the potential liability of defendants is that they have deep pockets and the wherewithal to meet judgments.