“(2) Regard may be had, in particular, to the following— (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.” (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
“3(1) Every council shall be a body corporate by the name of the parochial church council of the parish for which it is appointed and shall have perpetual succession.”
“2 General functions of council. (1) It shall be the duty of the [incumbent] and the parochial church council to consult together on matters of general concern and importance to the parish. (2) The functions of parochial church councils shall include— (a) co-operation with the [incumbent] in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical…”
“Alongside the redrawing of the boundaries, there has also been a clearer recognition that there are two stages of the inquiry into vicarious liability: 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.”
“(iii) the second stage of the vicarious liability inquiry was also satisfied. “The rape was … sufficiently closely connected to Mark Sewell’s [MS] … [position as elder] to make it just and reasonable that the defendants be held vicariously liable for it” (para 174).
“29. It is important to add that Males LJ had earlier made clear at para 103 that there were significant factors pointing against vicarious liability: “As the judge acknowledged, Mrs B was an adult married woman who was 29 years old and it was her decision to continue to associate with Mark Sewell despite his unacceptable behaviour. In fact she did have a choice whether to continue to associate with him, although it is fair to say that ending the friendship might have made it difficult for her and her husband to remain as members of the Barry Congregation and would therefore have carried a considerable spiritual cost. Moreover, the rape did not occur while Mark Sewell was performing any religious duty. It is true that, earlier in the day, the two couples had been “pioneering” (evangelising door-to-door), but since then much had happened … It can therefore be said that the rape occurred when the two couples were choosing to be together on an essentially social occasion, albeit one which must have been awkward in view of what had occurred. There is, therefore, at least an argument that by the time of the rape Mark Sewell’s status as an elder had somewhat faded into the background. Further, the rape itself did not involve, as the child grooming cases have, any kind of acquiescence by Mrs B because Mark Sewell was an elder. On the contrary, he forced himself on her violently.”
“38. Throughout his analysis, Lord Phillips referred both to the criteria for satisfying vicarious liability and the policy reasons for the doctrine, and he expressed the view, at para 34, that it was important to consider both. At para 35, he identified five policy reasons (or “incidents” as he referred to them at para 47) explaining the vicarious liability of employers: the deep pockets of the employer, that the activity is being undertaken on behalf of the employer, that the activity is part of the business of the employer, that the employer has created the risk of the tort, and the control of the employer over the employee. In his words at para 35: “The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer …: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee's activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
“42. Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson agreed) took his lead from the judgment of Lord Phillips in Christian Brothers. Primarily concentrating on the five policy reasons underpinning vicarious liability, articulated by Lord Phillips at para 35 of his judgment (see para 38 above), Lord Reed made clear that the first and fifth of those policy factors (deep pockets and control) were of limited importance and it was rather the other three policy factors that were helpful in understanding the modern rationale for the doctrine. They were that the tort had been committed while acting on behalf of the employer and as part of the employer’s business and that the employer had thereby created the risk of the tort. Lord Reed pointed out that those three policy factors are inter-related and together give an underlying rationale for vicarious liability which, going beyond a relationship of employment, he expressed in the following way, at para 24: “a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.””
“47. In looking at the justification for vicarious liability, Lord Reed noted that “deterrence” has not been advanced in the English case law as part of the policy behind vicarious liability. Instead, he referred to what has been termed in the academic literature as “enterprise risk” or “enterprise liability” (see, eg, Anthony Gray, Vicarious Liability: Critique and Reform, 1998, chapters 5-6) in the following passage at para 67: “The most influential idea in modern times has been that it is just that an enterprise which takes the benefit of activities carried on by a person integrated into its organisation should also bear the cost of harm wrongfully caused by that person in the course of those activities.””
“… One may detect behind them an anxiety that the scope of vicarious liability was being widened too far and, in both cases, the Supreme Court reversed the Court of Appeal and held that there was no vicarious liability.”
“58. Having examined the main 21st century decisions on vicarious liability of the highest court, it is now possible to pull together the legal principles applicable to vicarious liability in tort that can be derived from those authorities particularly the most recent cases of Barclays Bank and Morrison. (i) There are two stages to consider in determining vicarious liability. Stage 1 is concerned with the relationship between the defendant and the tortfeasor. Stage 2 is concerned with the link between the commission of the tort and that relationship. Both stages must be addressed and satisfied if vicarious liability is to be established. (ii) The test at stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship. But in applying the “akin to employment” aspect of this test, a court needs to consider carefully features of the relationship that are similar to, or different from, a contract of employment. Depending on the facts, relevant features to consider may include: whether the work is being paid for in money or in kind, how integral to the organisation is the work carried out by the tortfeasor, the extent of the defendant’s control over the tortfeasor in carrying out the work, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, what the situation is with regard to appointment and termination, and whether there is a hierarchy of seniority into which the relevant role fits. It is important to recognise, as made clear in Barclays Bank, that the “akin to employment” expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant. (iii) The test at stage 2 (the “close connection” test) is whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment. This is the test, subject to two minor adjustments, set out by Lord Nicholls in Dubai Aluminium, drawing on Lister, and firmly approved in Morrison. The first adjustment is that, to be comprehensive, it is necessary to expand the test to include “quasi-employment” as one may be dealing with a situation where the relationship at stage 1 is “akin to employment” rather than employment. The second adjustment is that it is preferable to delete the word “ordinary” before “course of employment” which is superfluous and potentially misleading (eg none of the sexual abuse cases can easily be said to fall within the “ordinary” course of employment) and was presumably included by Lord Nicholls because “in the ordinary course of business” were the words insection 10 of the Partnership Act 1890 . The application of this “close connection” test requires a court to consider carefully on the facts the link between the wrongful conduct and the tortfeasor’s authorised activities. That there is a causal connection (ie that the “but for” causation test is satisfied) is not sufficient in itself to satisfy the test. Cases such as Lister and Christian Brothers show that sexual abuse of a child by someone who is employed or authorised to look after the child will, at least generally, satisfy the test. But, as established by Morrison, the carrying out of the wrongful act in pursuance of a personal vendetta against the employer, designed to harm the employer, will mean that this test is not satisfied. (iv) As made particularly clear by Lady Hale in Barclays Bank, drawing on what Lord Hobhouse had said in Lister, the tests invoke legal principles that in the vast majority of cases can be applied without considering the underlying policy justification for vicarious liability. The tests are a product of the policy behind vicarious liability and in applying the tests there is no need to turn back continually to examine the underlying policy. This is not to deny that in difficult cases, and in line with what Lord Reed said in Cox, having applied the tests to reach a provisional outcome on vicarious liability, it can be a useful final check on the justice of the outcome to stand back and consider whether that outcome is consistent with the underlying policy. What precisely the underlying policy is has been hotly debated over many years by academics and judges alike. See, for example, PS Atiyah, Vicarious Liability in the Law of Torts (1967) chapter 2; Jason Neyers, “A Theory of Vicarious Liability” (2005) 43 Alberta Law Review 287; Anthony Gray, Vicarious Liability: Critique and Reform (2018); Vicarious Liability in the Common Law World (ed Paula Giliker, 2022). As we have seen at para 38 above, Lord Phillips referred to five policies in Christian Brothers but, as Lord Reed recognised in Cox, a couple of those have little, if any, force. At root the core idea (as reflected in the judgments of Lord Reed in Cox and Armes: see paras 42 and 47 above) appears to be that the employer or quasi-employer, who is taking the benefit of the activities carried on by a person integrated into its organisation, should bear the cost (or, one might say, should bear the risk) of the wrong committed by that person in the course of those activities. (v) The same two stages, and the same two tests, apply to cases of sexual abuse as they do to other cases on vicarious liability. Although one can reasonably interpret some judicial comments as supporting special rules for sexual abuse, this was rejected by Lord Reed in Cox. The idea that the law still needs tailoring to deal with sexual abuse cases is misleading. The necessary tailoring is already reflected in, and embraced by, the modern tests.”
“70. At the second stage of the inquiry, with respect, a number of errors were made by Chamberlain J some of which were repeated by Nicola Davies LJ and Males LJ. Neither Chamberlain J nor Nicola Davies LJ set out that the correct “close connection” test was that laid down in Dubai Aluminium drawing on Lister, as strongly confirmed, subsequent to Chamberlain J’s judgment, by Lord Reed in Morrison. Moreover, factors (a) to (e) set out in para 24(iii) above should not have been regarded as important by Chamberlain J; and Nicola Davies LJ was wrong to rely on factors (a)(b) and (c) and Males LJ was wrong to rely on factors (b) (c) and (e). These were errors because, for example, the early flowering of the friendship should have had no relevance to vicarious liability except as background; “but for” causation should not have been given the prominence it was given; the role of Tony Sewell was essentially irrelevant except as part of the background because he was not the person who committed the tort; the fact that, before lunch on the day of the rape, Mrs B and Mark Sewell had been on pioneering activities was again essentially irrelevant except as background; and Mark Sewell’s distorted view, equating rape and adultery, should have had no significance. 71. Males LJ’s judgment correctly recognised (see para 29 above) that there were important factors that pointed against vicarious liability. But he was persuaded to find vicarious liability by some factors that, as I have just explained, were either irrelevant or should not have been given the significance he gave them. Moreover, the test he ultimately applied was not the correct test as confirmed in Morrison. While as I have indicated (see para 58(iii) above) some minor adjustment is needed to that test, Males LJ in effect replaced it by a different test when he said, at para 106, “The rape was sufficiently closely connected with Mark Sewell’s status as an elder that it may fairly and properly be regarded as an abuse of the authority over Mrs B conferred on him by that status, such that the defendants who had conferred that authority on him should be vicariously liable.”
“73. In my view, applying the correct close connection test as set out in para 71 above, the claimant fails to satisfy that test. This is for the following reasons. 74. 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 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. It is also significantly different from the facts of A v Trustees of the Watchtower Bible and Tract Society where the sexual abuse of the child by the ministerial servant took place, after a grooming period, during or after book study, on field service, at Kingdom Hall or at a Convention of Jehovah’s Witnesses and all when he was “ostensibly performing his duties as a Jehovah’s Witness ministerial servant” (para 90). 75. 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. 76. Thirdly, James Counsell KC submitted that Mark Sewell never took off his “metaphorical uniform” as an elder. It was put to him by the court that that would mean that there would be vicarious liability even if he committed the tort of negligence, injuring a customer, while carrying on his cleaning business. He accepted that that would not be so and qualified his submission by saying that the metaphorical uniform was never taken off in his dealings with members of Barry Congregation such as Mrs B. But that is also an unrealistic submission. It cannot seriously be suggested that there would be vicarious liability if, for example, Mark Sewell was driving Mr and Mrs B and their children in his own car to the airport for their holidays and Mrs B was injured in an accident caused by his negligent driving. In my view, Mark Sewell was not wearing his metaphorical uniform as an elder at the time the tort was committed. 77. Fourthly, I accept that Mark Sewell’s role as an elder was a “but for” cause of Mrs B’s continued friendship with Mark Sewell and hence of her being with him in the back room where the rape occurred. However, as we have seen, “but for” causation is insufficient to satisfy the close connection test. 78. Fifthly, I do not accept that what happened in this case was equivalent to the gradual grooming of a child for sexual gratification by a person in authority over that child. James Counsell KC submitted that there was an analogous progression from Mark Sewell’s flirty behaviour with Mrs B, including hugs, holding hands and kisses and his confiding in her, through to his suggestion that they should run away together, and leading finally to the rape. In my view, 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. 79. Sixthly, as I have indicated, there is no relevance, except as background, in, for example, the role played by Tony Sewell 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. 80. It will be apparent that I agree with what Males LJ said at para 103 of his judgment (see para 29 above) when he was articulating reasons why it might be thought that stage 2 was not satisfied (before he went on to the factors that convinced him the other way). 81. In my view, therefore, the close connection test is not satisfied. The rape was not so closely connected with acts that Mark Sewell was authorised to do that it can fairly and properly be regarded as committed by him while acting in the course of his quasi-employment as an elder.”
“82. As a final check, if I stand back and consider the policy of enterprise liability or risk that may be said to underpin vicarious liability (see paras 42, 47 and 58(iv) above), that consideration of policy confirms that there is no convincing justification for the Jehovah’s Witness organisation to bear the cost or risk of the rape committed by Mark 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.”
“80. The “close connection” test has been clarified in BXB as being “whether the wrongful conduct was so closely connected with the acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment” (para 58(iii)). “But for” causation is not sufficient. A close connection is required, for example those placed in a position of authority over a child being responsible for the child’s pastoral care and using that position to commit sexual abuse. Sexual abuse cases do not form a special category (para 58(v)). The status of the tortfeasor without more does not satisfy the test of close connection (para 71). 81. The Judge did not have the benefit of the judgment in BXB but it is accepted that she correctly identified the close connection test and applied it to the facts of the case using guidance from the authorities.”
“85. The Judge’s starting point was identified as her finding that the entirety of the wrongdoing occurred many weeks after PXM’s relationship with the defendant had ceased [236]. Given the court’s conclusion in respect of ground 1, this is no longer applicable. The Judge thereafter considered the position upon the basis that PXM was in a relationship with the defendant that was akin to employment but found his role was extremely limited. He had no caring or pastoral responsibilities in relation to the claimant and he was not placed in a position of authority over the pupils. At [239] the Judge found that it had not been proved that the claimant was influenced even by a perception that PXM had authority or status within the defendant’s organisation. 86. The findings and assumptions of this court on grounds 1 to 3 as to the time when the grooming started and the role of PXM during the WEP differ from those of the Judge. It follows that I approach stage two of the vicarious liability test on the basis that grooming commenced when PXM was at the school, and his role at the school was akin to employment. 87. In respect of stage two, I agree with the assessment of the Judge as to the limited nature of PXM’s role at the school. He had no caring or pastoral responsibility for the pupils, a factor to which considerable weight is given in previous cases. PXM’s access to the claimant at school was limited as he was, or should have been, kept under close supervision at all times. Even allowing for the fact that PXM was to be addressed as if he was a member of staff, he held no position of authority over the pupils in the school. It was not until PXM left the school that any communication took place on Facebook and such communication was specifically prohibited by the school. 88. In my judgment, given the limited nature of PXM’s role during the course of one week, the facts do not begin to satisfy the requirements of the close connection test. The grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM. It follows that ground 4 of the appeal is dismissed.”
“2. The Lord Ordinary heard evidence from both reclaimers and the first defender. The reclaimers resided with their single mother and two older half-brothers. Their mother knew the first defender, who ran the local garage in the 1970s when they first became acquainted. It was not disputed that his purpose in fostering the friendship was to gain access to the reclaimers with a view to abusing them sexually. He often visited the family home and brought presents for the children. He ran a boys' football team in which one of the reclaimers was involved. In short, both reclaimers spoke to abuse occurring in the family home, and in the caretaker's house which the first defender had occupied as a condition of his employment with the second defenders. The abuse began in 1979/1980 and continued until about 1985/1986. They both regularly accompanied the first defender to the sports centre, during hours when it was open to the public and otherwise. This would be two or three times a week during school holidays and once a week during term time. They would help him set out equipment, setting up badminton nets and stands; fetching bags of footballs; and so on. The most serious abuse occurred in the caretaker's house. The first defender gave evidence admitting the abuse libelled in the criminal proceedings. 3. The precise dates when the first defender was employed by the second defenders could not be ascertained, but HMRC employment records show that he commenced employment as Head Caretaker in the tax year 1983/84 until July 1987. A job description for the Head Caretaker role from16 October 1987 , noted seven duties: supervision and direction of staff under his control; setting out/dismantling equipment; controlling stock; general security of the building; routine maintenance of equipment, plant and machinery; enforcing adherence by users of the sports centre to its rules; and other duties as defined by his manager. Under the heading "Conditions of Service", the following is noted: "(1) The post is a residential one and the postholder is required to live in the accommodation provided … (2) The Head Caretaker is required to deal with emergencies outwith normal opening hours of the Centre." The Head Caretaker's standard working hours were 8am until 5pm. However, it was noted that hours may vary and "include evening and weekend duties"… 4… "Whilst no finding is made on the precise nature and extent of the abuse perpetrated upon the reclaimers by the first defender, it has been established (i) that the first defender sexually abused the reclaimers in their family home at an address in …, Perthshire and in the caretaker's house at Bell's Sports Centre; and, (ii) that, without prejudice to the ability of the Lord Ordinary to hear evidence regarding the precise nature, frequency and extent of the abuse at any further Proof on the question of causation, quantification and apportionment of damages, the abuse carried out in the caretaker's house was, in general terms, of a more serious nature than that carried out in the family home."”
“7. A distinguishing feature of the present case was that the abuse commenced prior to the first defender's employment. The circumstances of BXB v Trustees of the Barry Congregation of Jehovah's Witnesses[2023] 2 WLR 953 , relied upon for the reclaimers, were very different.”