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Trustees of the Barry Congregation of Jehovah's Witnesses (Appellant) v BXB (Respondent) Case ID: UKSC 2021/0089

Supreme court judgment on the limits of vicarious liability 

Case report by Morrish Solicitors 

Vicarious liability is the principle by which an employer (usually) can be held liable for the acts or omissions of its employees.  So, if your car is damaged by a lorry, the lorry driver's employers can be sued for the damage. For more information on the principle please see Emplaw Law Card Vicarious Liability

In the last few years the senior courts have made a number of decisions in this area and most commentators think that the principle has been extended. 

So we have seen, for example, Morrisons Supermarkets held liable for a serious assault by one of its store attendants on a customer. 

In the Barry Congregation case the Court had to consider a claim brought against the Witnesses - both as an organisation worldwide, and in the person of the trustees of the local Congregation. 

The Claimant alleged that the Defendants were liable to compensate her for an attack upon her by an Elder of the organisation, in 1990.  The Elder ("S") had been convicted of raping the Claimant in 2014. 

It was common ground that other Elders had asked the Claimant to offer S "love and support" because he was suffering with depression.  As a result, the Claimant remained friendly with him, although his behaviour deteriorated.  After a session of door-to-door evangelising, at his house, S attacked and raped her. 

The Claimant succeeded at trial and the Defendants appealed.  The Court of Appeal upheld the decision. 

The Supreme Court has now found against the Claimant. 

In what seems to us to be something of a departure from the more recent trend described above, the Supreme Court held that although S's relationship with the Witnesses was akin to employment, there was not a significantly "close connection" between the attack and the work S did for the organisation. 

The Court pointed out that S was not carrying out his activities as an Elder, when the attack was committed.  One might think that is slightly surprising, when e.g., we have seen employers held liable for acts that have happened in the pub after work.  The Court said that the attack was not a "progression" but a one-off incident (and we'd say: so was the Morrisons attack on the customer).  S had "taken off his metaphorical uniform" at the time of the attack, said the Court.

We get the impression that the Supreme Court has decided, "thus far and no further," for the principle of vicarious liability.  The trend, as we've identified, was to extend the law - in part of course because employers tend to have deeper pockets.  The Court made it clear that a "deep pockets" argument on its own will not prevail where the case doesn't tick the appropriate legal boxes.  It would have been a brave lawyer who predicted this outcome with certainty; it will be a braver one who now seeks to push the limits of the law in this area.