Employers must compensate victims of misdeeds committed by their employees in the course of their work. That is a true statement, so far as it goes, but a Supreme Court ruling in a case concerning a Jehovah's Witness who was sexually assaulted by an elder in the faith showed that the concept of vicarious liability is much more nuanced than that.
The woman and her husband had been close friends of the elder and his family for some years before he sank into depression and alcohol abuse. He made advances towards her, at one point asking her to run away with him. It was agreed that their friendship would have come to an end had he not been an elder and had she not been advised by his father, also an elder, that he needed love and support.
The attack occurred when the woman and her husband went to the elder's home after taking part in door-to-door evangelising. After she went into a back room to talk to him about his depression, he pushed her to the floor, held her down and raped her. He was subsequently convicted of the rape, together with seven counts of indecent assault on two other victims, and sentenced to 14 years' imprisonment. By that time, he had been expelled as a Jehovah's Witness for unrelated conduct. The woman had also ceased her association with the faith.
After she took action, a judge found that the Jehovah's Witness organisation was vicariously liable to compensate her for the consequences of the elder's crime. She was awarded general damages of £62,000. The judge's ruling was subsequently upheld by the Court of Appeal.
Ruling on the organisation's challenge to that outcome, the Supreme Court noted that vicarious liability is unusual in that it renders a defendant legally responsible for civil wrongs committed by a third party. The law on vicarious liability had been subject to expansive redrawing of boundaries during the 21st century.
The Court accepted that the relationship between the organisation and the elder was akin to that of employment. He was carrying out work on behalf of, and assigned to him by, the organisation. His appointment as an elder made him part of the organisation's hierarchical structure and he performed duties that were in furtherance of, and integral to, the organisation's aims.
In upholding the appeal, however, the Court noted that the rape was not committed whilst he was carrying out any activities as an elder. His crime primarily arose from the abuse of his position as the woman's close friend. The rape was a shocking, one-off attack and was not an obvious progression from what had gone on before. It was unrealistic to suggest that he always wore his metaphorical elder's uniform when dealing with members of the congregation.
His wrongful conduct was not so closely connected with acts that the organisation authorised him to perform that it could be fairly and properly regarded as done by him in the course of his employment or quasi-employment. Overall, there was no convincing justification for the organisation being required to bear vicarious liability for the rape. The fact that the organisation had deeper pockets was no justification for extending the concept of vicarious liability beyond its principled boundaries.