The Supreme Court has this morning handed down judgment in Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB (Respondent). The appeal by the Jehovah’s Witnesses (JW) was unanimously allowed by the Court. In considering the tests for vicarious liability the court held
- Stage 1 – the elder (MS) who had raped the claimant was in a position akin to employment and the decision of the Court of Appeal in that regard was upheld
- Stage 2 – the closeness of connection test was not established for the following reasons:
- The rape did not occur whilst MS was carrying out activities on behalf of the JW
- In contrast to the child sexual abuse cases MS was not exercising control because of his position as an elder but rather because of his friendship with the claimant. Their close personal friendship was the driving force in them being together.
- It is unrealistic to say that as an elder MS was always wearing the “metaphorical uniform” of a faith leader i.e. he was always on duty
- The “but for” argument i.e. the reason why the claimant and MS knew each other which was the JW, was insufficient to satisfy a close connection
- This case was not equivalent to gradual grooming, there was not an objectively obvious progression to the rape
- The role of MS’s father and the wider JW organisation in not responding to MS’s inappropriate behaviour was not relevant save as background context.
Further in considering the policy of enterprise liability/risk there was no convincing justification for the JW to bear the cost of the rape just because they have deeper pockets. That did not justify the extension of vicarious liability.