Mr and Mrs B began attending the religious services of the Barry Congregation of Jehovah’s Witnesses in 1984. They made lots of friends in the congregation, among whom were Mark Sewell, his wife Mary and their children. Mark Sewell was an elder; however, he began drinking heavily and behaving inappropriately towards female members of the congregation, for example by kissing them on the lips when he greeted them. In 1990, he raped Mrs B after they had been out evangelising together and in 2014 he was convicted of her rape and of indecently assaulting two other people.

In 2017, Mrs B brought a claim for damages against the JWs’ worldwide governing body, the Watchtower and Bible Tract Society of Pennsylvania, and the Trustees of the Barry Congregation, claiming that they were vicariously liable for the rape because of the nature of their relationship with Sewell and because of the connection between that relationship and the commission of the rape. Both the High Court and the Court of Appeal found for Mrs B: we noted the Court of Appeal judgment here.

The Watchtower Society and the Barry Congregation appealed, and the Supreme Court has now handed down judgment: Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15: the Court allowed the appeal unanimously.

Vicarious liability is subject to a two-stage test: Stage 1 looks at the relationship between the defendant and the tortfeasor and Stage 2 looks at the connection between that relationship and the commission of the tort by the tortfeasor [4]. In this case, at the first stage, the question was whether the relationship between elders and the defendants was one that was capable of giving rise to vicarious liability. At the second, the question was whether the rape was sufficiently closely connected to Sewell’s position as an elder to make it just and reasonable that the defendants should be held vicariously liable for it [24].

As to Stage 1, the Court held that the relationship between the Jehovah’s Witness organisation and Mark Sewell, in his role as an elder, was akin to employment. [65]. As to Stage 2, however, Mrs B had failed to establish the correct “close connection test” [73], for the following reasons:

“First, the rape was not committed while Mark Sewell was carrying out any activities as an elder on behalf of the Jehovah’s Witnesses. He was at his own home and was not at the time engaged in performing any work connected with his role as an elder. So, eg, he was not conducting a bible class, he was not evangelising or giving pastoral care, he was not on premises of the Jehovah’s Witnesses and the incident had nothing to do with any service or worship of the Jehovah’s Witnesses. The lack of direct connection to the role assigned to him as an elder makes these facts significantly different from the institutional sex abuse cases where, eg, as part of their jobs the warden was on the institutional premises looking after the children in Lister or the Brothers were living in the same institution as their victims in Christian Brothers [74]”.

“Secondly, in contrast to the child sexual abuse cases, at the time of the rape, Mark Sewell was not exercising control over Mrs B because of his position as an elder. It was because of her close friendship with Mark Sewell and because she was seeking to provide emotional support to him, and not because Mark Sewell had control over her as an elder, that Mrs B went to the back room. The driving force behind their being together in the room at the time of the rape was their close personal friendship not Mark Sewell’s role as an elder. Put another way, the primary reason that the rape took place was not because Mark Sewell was abusing his position as an elder but because he was abusing his position as a close friend of Mrs B when she was trying to help him” [75].

Thirdly, “Mark Sewell was not wearing his ‘metaphorical uniform as an elder’ at the time the tort was committed” [76].

Fourthly, though Sewell’s role as an elder was a “but for” cause of Mrs B’s continued friendship with him and of her being with him in the back room where she was raped, “but for” causation was insufficient to satisfy the close connection test [77].

Fifthly, what had happened was not equivalent to the gradual grooming of a child for sexual gratification by a person in authority over that child: “the violent and appalling rape was not an objectively obvious progression from what had gone before but was rather a shocking one-off attack. In any event, the prior events owed more to their close friendship than to his role as an elder” [78].

Sixthly, there was no relevance except as background, in, for example, “the role played by Tony Sewell [Sewell’s father, who was also an elder] or the fact that inappropriate kissing on the lips with female members of the congregation when welcoming them was not condemned. One is not talking about vicarious liability for any tort of Tony Sewell and, as regards the latter, one is not talking about liability in the tort of negligence” [79].

For those reasons, the close connection test was not satisfied [81]. There was no convincing justification for the Jehovah’s Witness organisation to bear the cost or risk of the rape committed by Sewell: “Clearly the Jehovah’s Witness organisation has deeper pockets than Mark Sewell. But that is not a justification for extending vicarious liability beyond its principled boundaries” [82].

Appeal allowed [83].