Abuse Law – Case Law Update – Vicarious Liability (Jehovah’s Witness)

In the matter of Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15, the plaintiff, BXB (“Mrs B”), commenced court proceedings in 2017 against the Trustees of the Barry Congregation of Jehovah’s Witnesses seeking damages for her injuries and losses as a result of sexual abuse (a rape) by an elder, Mark Sewell. The abuse occurred at Mark Sewell’s home after he and the plaintiff had been out evangelising together.   

In 2014, Mark Sewell was criminally convicted in relation to his rape of the plaintiff and of indecently assaulting two other people.  

The UK High Court and the UK Court of Appeal found that the defendant is vicariously liable for the sexual abuse committed by Mark Sewell. The Supreme Court was called upon to consider whether the Court of Appeal was wrong in finding that the defendant was vicariously liable for sexual abuse committed by Mark Sewell.   

Whilst this judgement originates from the United Kingdom, the facts and findings are still considered relevant and noteworthy in Australia. 

Ultimately, on 26 April 2023, the UK Supreme Court held, unanimously, that the defendant is not vicariously liable for the sexual abuse committed by Mark Sewell against the plaintiff. The Supreme Court provided the following: 

          The Supreme Court agrees with the lower courts that the relationship between the Jehovah’s Witness          organisation and Mark Sewell was akin to employment. The important features here rendering the relationship akin to employment were:  

                    a. that as an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organisation;  

                    b. that he was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation;  

                    c. that there was an appointments process to be made an elder and a process by which a person could be removed as an elder; and  

                    d. that there was a hierarchical structure into which the role of an elder fitted. 

…the claimant has failed to satisfy the stage two test for the following reasons:  

                    (i) the rape was not committed while Mark Sewell was carrying out any activities as an elder;  

                    (ii) the primary reason the offence took place was that Mark Sewell was abusing his position as a close friend of Mrs B when she was trying to help him;  

                    (iii) it was unrealistic to suggest, as counsel for the claimant submitted, that Mark Sewell never took off his “metaphorical uniform” when dealing with members of the Barry Congregation;  

                    (iv) although Mark Sewell’s role as an elder was a “but for” cause of Mrs B’s continued friendship and hence of her being with him when the offence occurred, this is insufficient to satisfy the close connection test;  

                    (v) the appalling rape was not an objectively obvious progression from what had gone on before but was rather a shocking one-off attack; and  

                    (vi) other factors, such as the role played by Mark Sewell’s father, and the failure of the Jehovah’s Witness organisation to condemn Mark Sewell’s inappropriate kissing of members of the congregation when welcoming them, were not relevant except as background. 

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

Further Abuse Law information and case law updates written by our Emily Wright can be found on our website.