Vicarious liability is a legal concept where organisations can be held liable for the acts or omissions of employees and others, even where the organisation itself has not committed any legal wrongs.
The law on vicarious liability has largely developed recently in response to the large number of claims for sexual abuse, but its remit is not restricted to those cases and can equally apply to other acts by employees or quasi-employees and others, including those who hold positions of authority such as elders in religious organisations.
In the case of Trustees of the Barry Congregation of Jehovah's Witnesses v BXB, the Supreme Court has provided helpful clarity regarding how the court should approach these types of cases.
The claimant was raped by an elder from her local congregation of Jehovah's Witnesses (JW).
Criminal proceedings were taken against the elder, whilst the claimant brought a civil claim for damages for personal injury (including psychiatric harm), alleging that the JW was vicariously liable for the rape.
The Supreme Court decided on the facts that the JW was not liable to the Claimant in this case and set out some key principles for determining liability:
There are two stages to consider when determining vicarious liability:
Both stages must be addressed and satisfied if vicarious liability is to be established.
The test considers whether the relationship between the organisation and tortfeasor was employment or akin to employment.
In applying this test, the court will need to carefully consider the specific facts. Relevant facts will include:
The Stage 2 test is whether the wrongful conduct could fairly and properly be regarded as an act completed by the tortfeasor whilst acting in the course of employment or quasi-employment.
There is a need to carefully analysis the specific facts and the tortfeasor's authorised activities. A causal connection (the 'but for' causation test) is not sufficient in itself.
This judgment provides helpful clarity on the law of vicarious liability. It confirms that organisations should not be vicariously liable for independent contractors or where the wrongful conduct is not closely connected to the activities the tortfeasor is authorised to complete.
Whilst the case noted that the close connection test will almost always be satisfied where there is abuse by those employed or authorised to look after the people abused, this judgment does suggest a judicial pause to the recent widening of the scope of vicarious liability and appears to limit the appeal of expanding the doctrine in civil claims.
As you would expect, the Charity Commission will also use its regulatory oversight and powers to investigate charities where allegations are made.
Whilst not taking into account the recent BXB judgement, the following guidance is a useful starting point for charities considering their wider obligations and vicarious liability: Vicarious liability of a charity or its trustees.