In this appeal, the Supreme Court is asked to decide whether the Jehovah’s Witness organization is vicariously liable for a rape committed by Mark Sewell, a former elder.
In 1984, Mr and Mrs B began attending services of the Barry Congregation. There, they made friends with Mark Sewell, his wife Mary, and their children. The families became close, visiting each other’s houses for tea and going on holidays and days out together. Mrs B considered Mark Sewell to be her best friend.
Towards the end of 1989, Mark Sewell’s behavior changed. He began abusing alcohol and appeared depressed. He began flirting with Mrs B, including hugging her, holding hands and kissing her. He also confided in her. Concerned, Mrs B spoke to Mark Sewell’s father, Tony, who like his son was an elder. Tony explained that Mark was suffering from depression and needed love and support. It was accepted at trial that, had it not been for the fact that Mark Sewell was an elder and Mrs B had received this instruction from Tony Sewell, their friendship would have come to an end. Mr and Mrs B continued providing Mark Sewell with support. At one point, he asked Mrs. B to run away with him.
On April 30, 1990, Mr and Mrs B and Mark and Mary Sewell were taking part in door-to-door evangelising. Afterwards they all went to a local pub for lunch, where Mark and Mary Sewell argued. Later the families returned to Mark and Mary’s house. There, Mark Sewell went into a back room. Mrs B was asked by Mary if she could talk some sense into him. Mrs B decided that she should go to speak to Mark to try to convince him that he should go to the elders about his depression. A conversation ensued during which Mark Sewell pushed Mrs B to the floor, held her down and raped her.
On 2 July 2014, Mark Sewell was convicted of raping Mrs B and seven counts of indecently assaulting two other individuals. He was sentenced to 14 years’ imprisonment. By this time Mark Sewell had been expelled as a Jehovah’s Witness for unrelated conduct and Mrs B had ceased her association with the Jehovah’s Witnesses.
Mrs B commenced an action for damages for personal injury, including psychiatric harm, against the Watch Tower and Bible Tract Society of Pennsylvania (which is a charitable corporation that supports the worldwide religious activities of the Jehovah’s Witnesses) and the Trustees of the Barry Congregation, alleging that they were vicariously liable for the rape committed by Mark Sewell. The trial judge found them vicariously liable for the rape and awarded Mrs B general damages of £62,000. The Court of Appeal upheld the trial judge’s decision. The Trustees of the Barry Congregation now appeal to the Supreme Court.
HELD: The Supreme Court unanimously allows the appeal and holds that the Jehovah’s Witness organization is not vicariously liable for the rape committed by Mark Sewell.
Vicarious liability is an unusual form of liability by which the defendant is held liable for a tort (a civil wrong) committed by a third party. The law in this area has been subject to an expansive redrawing of boundaries in the 21st century. There are two stages of the inquiry, both of which have to be satisfied to find vicarious liability. The same two tests apply to cases of sexual abuse as they do to other cases on vicarious liability.
In the vast majority of cases the tests can be applied without considering the underlying policy justification for vicarious liability. In difficult cases it can be a useful final check on the fairness of the outcome to stand back and consider whether that outcome is consistent with the underlying policy.
The test at stage one is concerned with the relationship between the defendant and the tortfeasor (the third party, here Mark Sewell, who is committed to the tort). Although not a point taken by the counsel, the Supreme Court considers that a correct defendant for this claim was the Watch Tower Bible and Tract Society of Pennsylvania (the first defendant at first instance).
The first stage test is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In applying the “akin to employment” aspect of this test, a court needs to carefully consider the features of the relationship that are similar to, or different from, a contract of employment. 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.
The Supreme Court agreed with the lower courts that the relationship between the Jehovah’s Witness organization and Mark Sewell was committed to employment. The important features here rendering the relationship akin to employment were: that as an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organization; that he was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organization; that there was an appointment 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 was fitted.
The test at stage two asks whether the wrongful conduct was so closely connected with the act that the tortfeasor was authorized to do that it can be fairly and properly regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment . 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 authorized activities.
At the second stage of the inquiry, the courts below were errored by failing to set out the correct “close connection” test and taking into account incorrect factors.
The Supreme Court decides that the claimant has failed to satisfy the stage two test for the following reasons: (i) the rape was not committed while Mark Sewell was carrying out any activities as an elder; (ii) the primary reason the offense took place was that Mark Sewell was abusing his position as a close friend of Mrs B when she was trying to help him; (iii) it was unrealistic to suggest, as counsel for the claimant submitted, that Mark Sewell never took off his “metaphorical uniform” when dealing with members of the Barry Congregation; (iv) although Mark Sewell’s role as an elder was a “but for” cause of Mrs. B’s continued friendship and hence of her being with him when the offense occurred, this is insufficient to satisfy the close connection test; (v) the appalling rape was not an objectively obvious progression from what had gone on before but was rather a shocking one-off attack; and (vi) other factors, such as the role played by Mark Sewell’s father, and the failure of the Jehovah’s Witness organization to condemn Mark Sewell’s inappropriate kissing of members of the congregation when welcoming them, were not relevant except as background.
As a final check, consideration of the policy of enterprise liability or risk that may be said to underpin vicarious liability confirms that there is no convincing justification for the Jehovah’s Witness organization to bear the cost or risk of the rape committed by Mark Sewell. The fact that it has deeper pockets is not a justification for extending vicarious liability beyond its principled boundaries.
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13 February 2023 morning sessions Afternoon session
14 February 2023 Morning session
