Abuse: Jehovah’s Witneses (UK)

By Bill Madden on March 25, 2021

The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356 (on BAILII) provides a UK appellate consideration of vicarious liability for the sexaual assault of a member of the Barry congregation.

The trial judge had found that the first and second defendants, Watch Tower Bible and Tract Society of Pennsylvania and the Trustees of the Barry Congregation of Jehovah’s Witnesses, were vicariously liable for the rape of the respondent, Mrs B, by one of their elders, Mark Sewell, on 30 April 1990.

On appeal it was held that that the judge’s finding that an elder is as integral to the “business” of a congregation of Jehovah’s Witnesses as a priest is to the “business” of the Catholic Church was based on the evidence before the court and was a reasonable conclusion to draw on the facts ([77]).

The findings of fact made by the judge were based upon the evidence of Mr Schofield or were inferences which could reasonably be drawn from it and from articles in the Watchtower magazine. They were findings which the judge was entitled to make and represented a sound evidential basis for his finding at [164] that the relationship between the defendants and Mark Sewell was, in principle, capable of giving rise to vicarious liability for acts of sexual abuse perpetrated by him on members of the congregation.[(80)]

The judge’s identification at [165] of the relevant test as focusing on the relationship between the tort committed by Mark Sewell and his position as an elder of the organisation reflects the essence of the test identified by Lord Phillips in Christian Brothers, namely whether there is a sufficiently close connection between the relationship between the tortfeasor and the organisation and the act or omission of the tortfeasor [(82)].

The judge accepted that the rape did not occur when Mark Sewell was performing any religious duty. He observed that that is not a necessary ingredient of liability in cases of this kind.

On appeal it was held that on the facts of this claim, what is relevant for the purpose of the close connection test is the conferral of authority by the Jehovah’s Witness organisation upon its elders, coupled with the opportunity for physical proximity as between an elder and publishers in the congregation ([84]).

The two-stage test laid down by Lord Phillips PSC in the Christian Brothers case was satisfied and the appeal was dismissed.