Vicarious liability - a change in approach?

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 Facts

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 Decision

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:

• Stage 1 - considered the relationship between the organisation and the person that has committed the wrongdoing (the so called "tortfeasor").

• Stage 2 - considered the link between the commission of the wrongful act and that relationship (the "close connection" test).

Both stages must be addressed and satisfied if vicarious liability is to be established.

Stage 1

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:

• whether the work is being paid for in money or in kind
• how integral to the organisation the work carried out by the tortfeasor is
• the extent of the organisation’s control over the tortfeasor in carrying out the work
• whether the work is being carried out for the organisation's benefit or in further in support of the aims of the organisation
• what the situation is with regard to appointment and termination
• whether there is a hierarchy of seniority into which the relevant role fits

Stage 2

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.

What does this mean?

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.

For more information, please contact Natalie Wargent on 0117 314 5433 or Bradley Evans on 0117 314 5347 in our Regulatory Compliance team, or complete the form below.