BXB v Watch tower and Bible Tract Society of Pennsylvania
The Court of Appeal has now handed down its judgment in the case of Trustees of the Barry Congregation of Jehovah’s Witnesses (Appellant) v BXB, in which it was affirmed that the relationship between the religious group and one of its leaders could give rise to vicarious liability for the leader’s rape of a member of the group’s congregation.
In 1984 the claimant and her husband first attended the Kingdom Hall in Barry, South Wales, which was the meeting place of the Barry Congregation of Jehovah’s Witnesses. In 1986 the claimant was baptised as a Jehovah’s Witness. The claimant and her husband became friendly with another couple, the tortfeasor and his wife. The tortfeasor had special responsibilities within the group and later became an “elder”, which is a senior member of the congregation.
The claimant and her husband were asked by the tortfeasor’s father, who was also an elder, to act as confidants to the tortfeasor because he was ill.
There was a history of inappropriate behaviour by the tortfeasor. In 1990, the claimant and her husband had been pioneering with the tortfeasor and his wife, which is the central religious duty of Jehovah’s Witnesses. Afterwards the tortfeasor raped the claimant in a room in his house, which was an approved venue for Jehovah’s Witnesses meetings to take place.
Grounds of Appeal
This was an appeal brought by the second defendant (Trustees of the Barry Congregation of Jehovah’s Witnesses) following the decision at first instance. The grounds of the appeal were as follows:
- In relation to Stage 1 of the test for vicarious liability, the judge erred in his conclusion that the activities undertaken by the tortfeasor were an integral part of the “business” of the defendant and that the rape was a risk created by the defendants; and
- In relation to Stage 2 of the test for vicarious liability, the judge erred in his consideration that the rape was sufficiently closely connected to the tortfeasor’s position as an elder.
Court of Appeal Judgment
The test for vicarious liability identified by Lord Phillips in the Christian Brothers  case was applied.
Stage 1 – Is the relationship between the defendant and the tortfeasor capable of giving rise to vicarious liability?
It was held that the judge had reasonably concluded that the tortfeasor’s role as an elder was integral to the “business” of a congregation of Jehovah’s Witnesses in the same way a priest was to the “business” of the Catholic Church.
It was concluded that:
- An organisation, such as the Jehovah’s Witnesses 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; and
- Sexual abuse is almost always a form of abuse of power. Any organisation that confers on its leaders power over others creates the risk that they will abuse it in that way.
The relationship between the tortfeasor and the Jehovah’s Witnesses was, therefore, capable in principle of giving rise to vicarious liability for acts of sexual abuse by the tortfeasor and on members of the congregation.
Stage 2 – Is there a sufficiently close connection between the tortfeasor’s actions and the defendant, to make the defendant vicariously liable for the tort?
The judge considered that it was not necessary for vicarious liability to occur in circumstances where the tortfeasor was not performing his religious duty. The correct test should be more open, with an analysis of all aspects of the relationship between the tort and the tortfeasor’s status.
The relevant factor in this case for the purposes of “close connection” was the tortfeasor’s status as an elder and the authority conferred upon him by the Jehovah’s Witnesses organisation. This status provided the tortfeasor with the opportunity for physical proximity with the members of the congregation.
It was, therefore, concluded that the test of close connection was satisfied on the basis that:
- The tortfeasor’s senior position played an important role in why the claimant and her husband initially began to associate with the tortfeasor and his wife;
- The instruction from the tortfeasor’s father, a senior elder, to the claimant and her husband to act as confidants to the tortfeasor made it difficult to break off the friendship even after the tortfeasor’s behaviour became seriously concerning; and
- The religious group significantly enhanced the risk of the tortfeasor sexually abusing the claimant by creating the conditions in which the two might be alone together. This was through the implied instruction for the claimant to support the tortfeasor, which carried the group’s authority because the tortfeasor’s father was an elder.
The finding in relation to vicarious liability suggests that a religious organisation remains liable for abuse of one of its members by one of its leaders in that organisation. In addition, the finding suggests that there will be a close connection in circumstances where the tortfeasor held a senior position.
This finding is a reinforcement of those decisions in Maga v Archbishop of Birmingham  1 WLR 1441 and JGE v Portsmouth Roman Catholic Diocesan Trustees  EWCA Civ 938, which imposes quite a wide application of the close connection test and involving religious organisations.
Cases involving religious organisations in circumstances relating to vicarious liability are often a unique category, due to the nature of these organisations and positions held by its members. The finding in relation to vicarious liability in this case continues to adopt the court’s position that religious organisations could be vicariously liable for abuse committed by its members, whether in a religious setting or not.
For more information, please contact Patrick Williams, Solicitor.