This striking description of a defendant’s unsuccessful appeal – it was roundly dismissed by all three members of the court – comes at the end of the recent judgment in The Barry Congregation Of Jehovah’s Witnesses v BXB. The decision probably does not develop the law on vicarious liability as such (as will be seen below from what Nicola Davies LJ said) but mark its application on appeal in a matter involving sexual abuse of an adult. Relevant passages from each of the three judicial opinions are set out below.
Contained within the tailored test [of whether the relationship between the wrongdoer and the defendant company/body is sufficient to justify the imposition of vicarious liability on the latter for the acts of the former] in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailored version of the test applies in cases in which adults are alleged to have been sexually abused as it does in such cases involving children because the rationale for the test is the same. The issue is the connection between the abuse and the relationship between the tortfeasor and the defendant. It is not the particular characteristics of the victim. [Nicola Davies LJ at 87.]
In principle, however, the test must be equally applicable to cases involving the sexual abuse of adult victims, although its application will need to take account of the differences between children and adults. In such a case [ie involving adults] the relationship is less likely to be a relationship in which the tortfeasor exercises power over the victim and the victim is dependent on or subservient to the tortfeasor. Whether such a relationship exists, however, will be a question of fact in each case. [Males LJ at 96.]
This appeal is the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences committed by those whom they have placed in positions of responsibility and moral authority … even an adult may be susceptible to relationships which involve a risk of abuse, particularly in the context of those spiritual beliefs and doctrines which promote a culture of unquestioned obedience to religious leaders. [Bean LJ at 105.]
Alistair Kinley, Director of Policy & Government Affairs