The law surrounding sexual abuse claims, and particularly the circumstances in which vicarious liability may attach, has been the subject of much change recently in the English courts. This area of law is rapidly changing and defendant organisations and their insurers alike cannot afford to be unprepared for the challenging times ahead. As Lord Justice Phillips said in the case of The Catholic Child Welfare Society and others v Various Claimants and others , “vicarious liability is on the move”. In this article, we review three recent court decisions and consider the implications of these for defendants and their insurers. Even though the cases we are reviewing are sexual abuse matters, the changes reflected in these cases will apply in all employers’ liability situations. Vicarious liability is on the move Our first review is of the decision in A v The Trustees of the Watchtower Bible and Tract Society and others [19.06.15]. Facts The Claimant, who was 29 at the date of trial, alleged she had been sexually assaulted by a ministerial servant of the Jehovah’s Witnesses (the abuser) between 1989 and 1994 when she was between four and nine years of age. The abuser was deceased at the date of the trial. The Claimant’s allegations against the Defendant religious organisations were twofold: firstly, that the Defendants were vicariously liable for the abuser’s actions; and secondly, that they were vicariously liable for the elders’ failures to protect the Claimant from abuse (the elders had known the abuser had assaulted other children in 1990). The Claimant’s allegations therefore related to vicarious liability of the Defendant as well as alleged systemic failings of the religious organisation. The Defendants’ stance The Defendants submitted the role between the elders/ministerial servants and the Jehovah’s Witnesses could be distinguished from the role of a priest and a church, and as such not subject to the findings in JGE v English Province of Our Lady of Charity and another  and The Catholic Child Welfare Society where the Defendant religious organisations had been found to be vicariously liable for the abusers’ actions. In support of this argument the Defendant submitted the elders and ministerial servants were not in full-time clergy, had a secular life as well as being members of the congregation, were not dictated to regarding where they should live and were not controlled by, fully integrated into or obedient to the organisation of Jehovah’s Witnesses in the same way that full-time clergymen were. Court ruling Mr Justice Globe considered three main issues and held as follows: (i) The limitation period would be disapplied in relation to the complaint against the elders because the Claimant did not have sufficient knowledge until after the Defendants’ witness statements had been served. The reasoning behind this Page 2 of 6 was because the Claimant had not known about the assaults on another child in 1990 until the Defendants’ witness statements had been received. It was also held that even though the abuser had died and some of the Defendants’ documents/witnesses were unavailable/deceased, the prejudice to the Defendants did not outweigh the prejudice that would be caused to the Claimant in failing to let the action proceed. (ii) The Defendants were vicariously liable for the sexual abuse. In reaching this conclusion, the Court applied the two stage test set out in The Catholic Child Welfare Society. This two stage test (i) whether there was a close relationship between the defendant and the abuser and (ii) whether the sexual assaults were connected to the relationship between the defendant and the abuser, such that vicarious liability should apply. In responding to the Defendants’ submissions regarding the difference between the role of a priest and that of an elder/ministerial servant, Globe J held that being a Jehovah’s Witness was a way of life for all members and particularly so for elders/ministerial servants. The strict code of moral conduct all members are expected to observe and apply in their day to day living is enforced by a judicial committee. The Judge found that the hierarchical structure of the Jehovah’s Witnesses did have close similarities to the organisational structure of the Roman Catholic Church. Importantly, the Judge also held that the high level of control over all aspects of life of a Jehovah’s Witness was arguably a closer relationship than that to be found in an employer/employee relationship and at the very least, akin to it. (iii) Finally, it was held the Defendants were vicariously liable for the safeguarding failures of the elders who failed to protect the Claimant from abuse after they knew that the abuser had abused other children in 1990. Commentary Vicarious liability attached to the Defendants because the abuse was only possible due to the abuser’s status as a ministerial servant which meant no one questioned him about being alone with the Claimant. This was so, despite the fact that historically there was a requirement for the following features to be present: a) Control – the employer should have control over the employee. b) Organisation – consideration of how central the activity was to the organisation. c) Integration – whether the activity was integrated into the organisational structure of the enterprise. d) Entrepreneur – whether the person was in business on his own account. Despite the above tests which were previously applied, Globe J found in this case that the abuse was inextricably interwoven with the duties as a ministerial servant and this was key to the finding that the Defendants were vicariously liable. This case follows a long line of cases where the distinction between control, calling, remuneration and rules have been weakened to a point where any organisation which offers spiritual or pastoral guidance and as such reaches out into a community risks being caught by vicarious liability. Page 3 of 6 Consensual sex re-defined? The second case we are reviewing is the decision in JL v Bowen and the Scout Association [27.05.15]. Facts The Claimant was 47 at the date of trial and alleged he had been sexually abused by Laundy who was both a scout chaplain and a priest. Although the Claimant had met Laundy at the age of eight through the cubs, the sexual abuse did not begin until the Claimant was 16½ and it concluded when he was 31. After the ‘relationship’ between Laundy and the Claimant finished, the Claimant spoke to the police about the assaults. Laundy was subsequently convicted of several indecent assaults against the Claimant. Court ruling His Honour Judge Platts considered limitation, consent and vicarious liability and held as follows: (i) The limitation period should be disapplied. It was only after undergoing therapy in 2010 that the Claimant felt capable of addressing his issues and making a claim. (ii) The Claimant had not consented to the initial sexual encounters with Laundy, even though he was over 16 when they occurred. The Claimant had not been able to freely give consent to these assaults because he had been groomed and emotionally manipulated from a young age. This manipulation and grooming had begun before the Claimant was 16. The Claimant was able to rely on the convictions against Laundy as evidence that the Claimant had not consented to the sexual acts. However, there was a change in dynamics of the relationship between the Claimant and Laundy after the Claimant went to university and established a sense of independence. As such, the sexual acts from this time onwards were consensual. (iii) Both the Defendants were vicariously liable. In applying the Catholic Child Welfare Society test, it was held that the Defendants both had control over Laundy who had only become a scout chaplain because he was a priest. As such, the abuse was therefore closely connected to Laundy’s roles. Commentary This decision reinforces the weight given by the courts to the defendant organisation having control over the abuser and promoting their relationship with the claimant. In this case it was the abuser’s role as a priest and scout chaplain that allowed him to develop relationships with young men in order to provide pastoral and spiritual support. It can be seen from these two decisions how important it is for defendants faced with sexual abuse claims to consider the extent to which there may have been an external connection between the claimant and the abuser outside of their role with the defendant. In the absence of any such external connection, vicarious liability is likely to attach to the defendant if the Catholic Child Welfare Society test is satisfied. The courts are widening the circumstances in which an abuser’s role in a defendant organisation can be found to be akin to employment and this makes it all the more difficult for these types of claims to Page 4 of 6 be defended. However, there is some light at the end of the tunnel for defendants and their insurers, and this can be seen in our final case review. Limitation may not be dead Earlier this year, the Court of Appeal handed down judgment in the matter of RE v GE [27.03.15] which provides hope to defendants and insurers that claims brought a significantly long time after the alleged assaults occurred are capable of being defended. Facts The Claimant was 46 at the date of trial and alleged she had been sexually abused by her father between 1974 and 1982 when she would have been aged between six and 14. The allegations were denied by the Claimant’s father and no convictions had been secured. The claim was issued in 2012, being 26 years after the Claimant attained her majority. The Defendant argued the claim was statute barred. During the action it was revealed the Claimant had disclosed the sexual abuse by her father on a number of occasions prior to commencing civil proceedings. The abuse was even cited as a ground for unreasonable behaviour during the divorce proceedings of the Claimant’s parents in 1991. Court ruling In considering the issue of limitation, His Honour Judge Charles Harris QC refused to disapply the limitation period at first instance. This decision was subsequently supported by the Court of Appeal for the following reasons: (i) The Claimant’s date of knowledge of a potential cause of action was the date of her majority. Although delays had ensued after the Claimant had instructed solicitors as a result of difficulties in obtaining a medical report, there was no evidence that the Claimant had been anxious to progress her claim. This led the Judge to conclude there was a lack of good reason for the delay in bringing the claim. (ii) The overriding question was whether it was fair and equitable to allow the action to proceed. Equitable meant fair, and that meant fair to both the Claimant and Defendant, not just the Claimant. Commentary This decision is important for defendants where there is evidence of the claimant having taken legal advice on the possibility of bringing a civil claim, but that claim has taken several years to materialise, or where a letter of claim has been sent but proceedings have not been promptly brought thereafter. This decision is also particularly useful to defendant organisations or insurers who no longer have traceable insurance due to the delay in the proceedings being brought. Lord Justice Lewison addressed this in his judgment and noted that people arrange their affairs on the basis that stale claims cannot be pursued. He noted insurance cover is taken out and maintained on the basis that claims against the insured must be timeously brought. Lewison LJ helpfully recognised that organisations maintain document destruction policies fashioned according to limitation periods and that businesses raise finance and pay dividends on the basis that their accounts can be settled. This leads the way for Page 5 of 6 defendants to argue that relevant documents have not been retained given the delay in bringing the claim. Any defendant considering raising a limitation defence should read this case and craft a defence to meet the guidance set out. Discussion There are still a large number of sexual abuse claims coming before the courts. Defendant organisations and insurers may argue that an abuser was either not akin to an employee or that the acts of abuse were completely unconnected to his role with them. Either way, the defendant is averring that vicarious liability should not apply. However, claimant solicitors are continuing to try and widen the definition of ‘akin to employment’. This is evident from the case of JL, where a man who held the roles of both scout chaplain and priest was held to be sufficiently closely connected to both the scouts and the church to make him akin to an employee. This is further demonstrated in the case of A v Watchtower where an elder and a ministerial servant were considered to be sufficiently close and integrated within the religious organisation, such that the organisation was vicariously liable. It is too early to tell what impact these decisions will have for defendants but arguably they could result in an increase in the number of civil claims for allegations of sexual assault being brought. It is also likely that in turn defendants will see claims brought where there is a more tenuous link between the abuser and the ‘role of employment’. For example, current Scottish case law holds there is no negligence, and as such no liability, in a situation where a social worker conducts a sexual relationship with a vulnerable client. In light of the cases reported in this article, how long will it be before this position changes, if only in the English courts? When it does change, which other organisations may find themselves liable for the acts of someone they did not consider an employee or for an act they did not view as being closely connected to that person’s role? In considering possible future situations where vicarious liability may apply, it is foreseeable it may extend to the situation where a policeman or a teacher abuses a child outside of their respective professional roles. It has only been possible for such abuse to take place because their professional roles provide them with a level of respect and trust within the local community which remains, even when they are not ‘on duty’. If the parameters of vicarious liability continue to be expanded, it is quite possible that organisations will be held to be vicariously liable in these types of situations where they never would have been before. Inevitably, this will cause defendants and organisations to question which cases remain capable of being defended. As can be seen from the judgments summarised in this article, defendants and organisations should still be defending some of these claims, particularly where the following applies: a) The abuser and the claimant met or knew each other outside of the abuser’s role with the organisation. b) The grooming of the claimant by the abuser occurred in some capacity outside of the abuser’s role with the organisation. c) The sexual abuse occurred outside of the abuser’s role with the organisation (i.e. the abuser was a family friend of the claimant or of his/her parents). Page 6 of 6 d) The sexual abuse occurred after the age of consent and there was no grooming of the claimant through the abuser’s role with the organisation before this age, although a case could be presented for breach of trust. e) There are no convictions against the abuser (either relating to the claimant or at all) in which case the claimant’s evidence may be challenged. This class of claim, more than most, requires careful forensic analysis, in particular carefully reviewing the claimant’s medical records, obtaining the notices of conviction/indictment, considering the claimant’s police witness statement and reviewing these for entries which may relate to both liability and limitation. It is important to remember it is common for further claims to follow against an abuser once an admission in respect of one claimant has been obtained and the other claimants will of course rely on that admission. Organisations need to take heed of the lessons to be learnt from these judgments, and that applies even to those organisations who previously thought they would avoid the imposition of vicarious liability. Organisations that offer guidance to young people should be clear about the parameters of the duties provided by their volunteers/employees. Consideration now needs to be given to matters which organisations probably felt they did not need to have regard for previously, for example, does the duty of a volunteer/employee extend beyond meeting times and if so to what extent? As Lord Justice Phillips observed and demonstrated this area of law is on the move and with a raft of cases currently being litigated we can only speculate where its tentacles will extend to next. Kennedys is a trading name of Kennedys Law LLP. Kennedys Law LLP is a limited liability partnership registered in England and Wales (with registered number OC353214).