Another instalment in the developing law on vicarious liability for historic sexual abuse…  

Background

Ms A, now 29, claimed damages for personal injury and loss arising from sexual assaults by Peter Stewart from 1989 to 1994, when she was between about 4 and 9. She claimed that the abuse had occurred at least once a week [22]. Stewart is now dead; and in A v Watchtower Bible and Tract Society (Trustees of) & Ors [2015] EWHC 1722 (QB) she sued the Jehovah’s Witnesses (“JWs”). The first defendants were the over-arching body of the JWs, while the second and third were the direct or indirect successors of the congregation originally known as the Loughborough Limehurst Jehovah’s Witness Congregation, which had subsequently split into two. A argued that that the defendants were vicariously liable for the sexual assaults committed by Stewart when he was or had been a Jehovah’s Witness ministerial servant (“the assault claim”). 

The primary limitation period had expired on 4 September 2006 (three years after Ms A had attained the age of 18) but the action was not commenced until March 2013 and she sought an order for the disapplication of the limitation period under s 33 Limitation Act 1980 [6, 7 & 37]. Secondly, she claimed that the defendants were vicariously liable for the actions of the Limehurst Elders who, in 1990, had negligently failed to take reasonable steps to protect her from Stewart once they knew he had sexually assaulted another child in the congregation (“the safeguarding claim”). She also contended that the safeguarding claim had been brought within the primary limitation period pursuant to ss 11 and 14 of the Act because she had not had the requisite knowledge to sue until the defendants’ witness statements were received in March 2014.

Globe J described the disciplinary procedures of the JWs like this:

“Jehovah’s Witnesses strive to live by a strict code of moral conduct based on the scriptures. However, when a member of the congregation is accused of committing a sin, the body of elders will assign two elders to investigate if there is evidence that the sin was committed. If there is, the body of elders will appoint a judicial committee of three or more elders to provide spiritual assistance to the person who committed the sin. If they find the individual genuinely repentant they will provide spiritual counsel and reproof to help avoid recurrence of the sin and may restrict the individual from full participation in meetings (Acts 26:20; Watchtower 1976, 1 December 1981, 15 September 1994, 15 July 2007). There may be an announcement to the congregation during a regular scheduled meeting that the individual has been “reproved”, but the sin itself should not be mentioned (Shepherd the Flock of God p.98; Watchtower 1 December 1976). If the reproved individual is an elder or ministerial servant, he will be ‘deleted’, that is removed, from that position and an announcement of the deletion should also be made to the congregation at a meeting (Shepherd the Flock of God p 42; Watchtower 1 December 1976). If the judicial committee finds an individual is not repentant, he or she may be ‘disfellowshipped’, that is, excommunicated from the congregation. In that case, an announcement should be made to the congregation that the individual is no longer one of the Jehovah’s Witnesses, but again the sin itself would not be mentioned (Shepherd for The Flock of God p 101). The information received by and the deliberations of a judicial committee are supposed to remain confidential (Proverbs 25:9). Those who are disfellowshipped should be ‘shunned’ by all those who wish to have a good relationship with Jehovah (Pay Attention to Yourselves and to All The Flock 1991 p 103)” [19].

The safeguarding claim and the limitation period

As to the safeguarding claim, Globe J accepted that A had not had sufficient knowledge of the facts within the meaning of s.14(1) Limitation Act 1980 until March 2014 [41]. Moreover:

“even if (contrary to my earlier finding) the claimant were to be deemed to have had sufficient knowledge within the meaning of s14 of the Act, it would be equitable to allow the action in relation to the ‘safeguarding claim’ to proceed and for me to direct that the provisions of s 11 should also not apply to that part of the case” [58].

Vicarious liability and the assault claim

In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 Lord Phillips PSC had referred at [21] to a two-stage test for establishing vicarious liability.

“… The test requires a synthesis of two stages: (i) The first stage is to consider the relationship of D1 and D2 to see whether it is one that is capable of giving rise to vicarious liability. (ii) … What is critical at the second stage is the connection that links the relationship between D1 and D2 and the act or omission of D1.”

In JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938, where a priest appointed by a diocesan bishop to visit a children’s home had sexually abused a child at the home, Ward LJ had stated [73] that the time had come emphatically to announce that the law of vicarious liability had moved beyond the confines of a contract of service: the test was

“… whether the relationship of the bishop and (the priest) is so close in character to one of employer/employee that it is just and fair to hold the employer vicariously liable.”

The defendants had submitted that JW elders and ministerial servants were different from the priest in E and the brothers in Various Claimants [62]; however, Globe J held that the facts satisfied both stage one of Lord Phillips’s two-stage test and Ward LJ’s dictum in JGE [74].

As to stage two, citing Lister & Ors v Hesley Hall Limited [2002] UKHL 22 and Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256 he accepted Ms A’s account of what had happened:

“… the sexual abuse … by Peter Stewart was not as a result of the mere opportunity of his presence in the claimant’s company for reasons outside any role he was playing as a Jehovah’s Witness. Whether the abuse took place at or after book study at whoever’s home, on field service, at Kingdom Hall or at the Convention, he was ostensibly performing his duties as a Jehovah’s Witness ministerial servant … [T]he progressive acts of intimacy were only possible because he had the actual or ostensible status of a ministerial servant that meant no one who saw him questioned his being alone with the claimant. As in the cases of Lister and Maga, it is that that provides the close connection between the abuse and what he was authorised to do. In the words of Lord Steyn, they were ‘inextricably interwoven’ with the carrying out of his duties. In such circumstances … it is fair and just to hold the defendants to be vicariously liable for his acts” [90].

The elders had owed a duty of care “to warn the congregation and individual parents about the risks posed by Peter Stewart” [122] and they had breached that duty{123].

He held the defendants vicariously liable for Stewart’s abuse of A:

“… the elders had additional responsibilities to those held by ministerial servants. They were even closer and more integrated with congregational issues than were ministerial servants. They had a spiritual role and partly exercised that role, via the judicial committee, and decisions of the body consequent upon decisions of the judicial committee. The decisions that emanated from the judicial committee and thereafter from the body of elders were a fundamental part of the role of the elders within the organisation. The second and third defendants are the trustees and successors of the Garendon Park and Limehurst Congregations. They are unincorporated associations who have taken over the responsibility of the congregations. In circumstances where, having applied the two-stage test, I have already found they are vicariously liable for the actions of Peter Stewart, I also find they are vicariously liable for the actions of the elders in relation to the above breach of duty arising from the findings of the judicial committee in 1990” [124].

Comment

A v Watchtower Bible and Tract Society is the latest in a line of recent cases in which religious organisations have been held vicariously liable for historic sexual abuse.

In ‘Vicarious liability of the Roman Catholic Church for sexual abuse by a priest’ (2010) Journal of Professional Negligence 26, 113–117 Kevin Williams suggests at 117 that “the senior judiciary are now rightly convinced that in order to minimise the risk of vulnerable victims suffering abuse, institutions should increasingly face liability”.

Subsequent events would appear to confirm that statement. In Maga, the claimant was not even a Roman Catholic and had no pastoral connexion with the Church: he was simply a boy who had been befriended by his abuser – one Clonan, an assistant priest at the local Roman Catholic Church – invited to parish discos and given various odd jobs in return for payment. In ‘Maga and vicarious liability for sexual abuse’ (2011) 167 Law & Justice 20, I suggested that the reasoning in Maga had gone as follows:

• it was accepted that Clonan had sexually abused Mr Maga;
• Clonan’s immediate superior, Fr McTernan, had been told about the abuse as priest-in-charge and had done nothing about it;
• Clonan had disappeared without trace and McTernan was now dead; and therefore
• the Archdiocese had to carry the can.

Increasingly (and, in my view, rightly) the courts are taking the view that sexual abuse is such a serious matter that where the abuser has disappeared or died, the institution with which he was associated – even if not as an employee (which Stewart was not) – should compensate the victim. A v Watchtower Bible and Tract Society is in line with that way of thinking.