Sexual abuse: a third party’s fault?
13 February 2020
On 30 January 2020, Mr Justice Chamberlain gave judgment in BXB v (1) Watch Tower and Bible Tract Society of Pennsylvania (2) Trustees of the Barry Congregation of Jehovah’s Witnesses  EWHC 156 (QB), making an important contribution to the law of vicarious liability.
The factual background is complex, but the essential facts relied upon by BXB or “Mrs B” were as follows. She was baptised in to and began attending the Barry Congregation of Jehovah’s Witnesses in about 1986. With her husband, (“Mr B”), she befriended another couple in the congregation, the Sewells. Mark Sewell was a ‘Ministerial Servant’, and as such had special responsibilities within the congregation. He later became an ‘Elder’, a spiritual leader.
The friendship became strained as Mark’s behaviour became increasingly volatile and inappropriate; however, Mrs B was encouraged by another Elder, Tony Sewell, to provide Mark with extra support. In 1990, the two couples went “pioneering” (door-to-door evangelizing) together. They then returned to the Sewells’ home where, in a back room, Mark raped Mrs B.
Mrs B later reported the rape to the Elders, who appointed investigators, and Mrs B was asked intimate questions about her version of events. She was invited to attend a ‘Judicial Committee’ hearing, where, in the presence of the Sewells, she was questioned as to the veracity of her claim. Mark Sewell denied the allegations and was found not guilty. The offences were then investigated by the police decades later, culminating in a criminal trial in 2014. Mark Sewell was convicted of raping Mrs B and of 7 counts of indecent assault against other individuals.
The Defendants accepted that Mark Sewell had raped Mrs B, but denied that they were vicariously liable. Mrs B also claimed that the Defendants were liable for the failure of the Elders to adequately investigate and act upon the allegations of rape. The Defendants denied that they owed any such duty or that it was breached (though this issue was ultimately not determined by the court, see §186-187).
First, the court considered whether it would be equitable to allow the substantive claims to proceed under s. 33 of the Limitation Act 1980, given that the primary limitation period for the rape expired on 30 April 1993. The application of s.33 discretion is notoriously difficult to predict, but the approach here is noteworthy. Referring to the seminal case of A v Hoare  UKHL 6 (and to Lord Hoffman’s approach there at §49), it was stressed that:
there is nothing in the statute, or the case law interpreting it, to suggest that the only valid reason for delay… is a diagnosed psychiatric disability covering the entire period of the delay. Section 33(3)(a) is framed in deliberately general terms. It invites focus on the ‘reasons’ for delay.(§124).
Mrs B’s evidence was accepted as true, namely that
following the Elders’ investigation Mrs B felt humiliated, upset and ashamed; and, as a result, she felt that she would not be believed if she raised the matter formally again (§124).
This was consistent with the medical evidence (§123). The “key factor” was the effect of the delay on the cogency of the evidence (§125). Noting that this was not a case “where it can be said that Mrs B’s evidence, in its essentials, was so inconsistent as to be obviously unreliable” (§128), the Defendants’ case on this issue was dismissed: the evidential difficulties highlighted would not cause them significant prejudice (§§ 125 – 129).
The basic inquiry is that articulated in Various Claimants v Catholic Child Welfare Society  2 AC 1 at §21 by Lord Phillips, namely: (i) whether the relationship between the tortfeasor and the party said to be vicariously liable is capable of giving rise to vicarious liability, and (ii) whether there is a sufficient connection between that relationship and the act or omission of the tortfeasor (§134).
At the first stage, Mr Justice Chamberlain held that the key questions, following Cox v Ministry of Justice  UKSC 10 are: (i) whether Mark Sewell carried on activities as an integral part of the ‘business’ activities carried on by the Defendants and for their benefit, and (ii) whether the commission of the rape was a risk created by the Defendants by assigning those activities to Mark Sewell. The answer to both questions was ‘yes’ (§157).
The first question was easily satisfied by the evidence before the court of the position of Elders within the congregation, supported by the findings in A v Trustees of the Watchtower Bible and Tract Society  EWHC 1722 (QB) (“A v Watchtower”) regarding the position of Ministerial Servants (§159).
As to creation of risk, the court held that:
any organisation that confers on its leaders power and authority over others creates a risk that those leaders will abuse that power and authority… 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… Often, the perpetrator abuses his own power, or that of others, to engineer the situation in which the abuse can occur… any organisation that confers on its leaders power over others creates the risk that they will abuse it in that way. (§§161 – 163).
The next limb, namely whether there was a “sufficient connection” between that relationship and the occurrence of the rape, was less straightforward here than in Maga v Archbishop of Birmingham  1 WLR 1441 and A v Watchtower. Mrs B was an adult married woman who had chosen to associate with Mark Sewell, and the rape did not take place while a religious duty was being performed. Notwithstanding, the court stressed that:
the test is more open-textured and requires an analysis of all aspects of the relationship between the tort and the abuser’s status (§167).
Several features of the relationship demonstrated a sufficient connection. The couples had met in the context of religious gatherings, and though they initially got on well, later tension was tolerated because of Mark’s position as an Elder, and because Mrs B had been instructed to act as a confidant to Mark by Tony Sewell. This essentially took the form of a religious obligation in the context. This provided a strong causative link: but for their positions as Elders, Mrs B probably would not have remained friends with Mark by the time of the rape. By these features, the Defendants had created or significantly enhanced the risk that Mark would sexually abuse Mrs B, in creating the conditions that they might be alone together. Further, the rape had occurred after the couple had been pioneering, and finally, there was evidence, accepted by the court, that the rape had been engineered to generate scriptural grounds for Mark Sewell’s divorce from his wife (§§168-172).
The decision provides a tightly reasoned and thorough analysis of the features said to demonstrate a sufficient connection between the relationship and the tort committed, illustrating that the imposition of vicarious liability in any given case will be intensely fact-specific. Vicarious liability is an area which is often said to be “on the move”, (and note, the decision of the Supreme Court in Barclays Bank Plc (Appellant) v Various Claimants (Respondents), heard in November 2019: the appeal https://www.supremecourt.uk/cases/uksc-2018-0164.html, is awaited). However, this decision shows the capacity of the doctrine to accommodate what may appear to be a tort which is attenuated from the core relationship, yet doing so in a robust manner by reference to very specific facts.
Seems a very reasonable and robust judgement to me. I hear Watchtower are now appealing the decision, so will be interesting to see if leave is given and what the grounds for appeal are.
Doesn’t strike me as groundbreaking, Simply applied the Catholic CWS approach to the facts. Facts do raise a question about how an organisation should handle serious allegations. I suggest they have a rule that an allegation amounting to a crime will be dealt with by the police/CPS, not internally. The police/CPS may not be perfect, but they will be better than the internal route, short term and long term
I am troubled by the holdings in respect of the psychiatric injury said to have been caused by having to testify at the trial in 2014.
Imagine a case in which the alleged abuser is worth powder and shot being “good for the money” if sued. Now suppose he denies the allegation and is acquitted by the jury; but the complainant brings civil proceedings and succeeds – on the balance of probabilities. If the defendant is liable for the harm caused to the complainant by having to testify the effect is to make the defendant pay damages for exercising his right – his undoubted right – to defend himself against the criminal charge.
It’s just wrong; there should be no such primary liability – and therefore of course no vicarious liability either.
I would be interested to see anyone explain why I am wrong!
Very interesting read, I firstly looked at the court papers you’ve kindly provided a link to and thank goodness for your articles explanation as vicarious liability seems a rather complex minefield of Law! :)
I noticed that the judgment does not contain the word “frolic”, as in the cliche, “on a frolic of his own”. I’d have thought that the defence used would have been that the rape unmistakeably wasn’t performed not on behalf of the employer as part of the employee’s duties, but rather was a textbook example of exactly what that cliche referred to, a “frolic” of the employee’s own.
Paradoxically, in A v Trustees of the Watchtower Bible and Tract Society  EWHC 1722 (QB), teaching and disciplinary measures that clarified what behaviours the JW sect expected and commanded of its leaders and members, instead of helping to establish the “frolic” defence as one might expect, seems to have been used to show a proximity between the sect and the frolics from which the sect took more trouble than any ordinary employer would have taken (in the day) to *distance* itself.
There don’t seem to be any developments in Human Rights law in this case.
The contrast is stark between the JW religion and (trinitarian) Christianty, in that the defendant contested liability. In far less clear-cut circumstances, the Church of England would likely have published grovelling apologies for all sorts of corporate sins, on behalf of the whole of Christianity and (more-or-less) God Himself, coughed up generous compensation to historic complainants whose complaints the police and the Crown Prosecution Service hadn’t taken seriously at the time, and convened and attended public inquiries galore, including inquiries into how well or badly earlier inquiries had been conducted.
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