Daniel Millar, pupil barrister at 12KBW, analyses the successful vicarious liability claim for abuse, which applied BXB v Trustees of the Barry Congregation [2023] UKSC 15.

Introduction

Lord Burrows and Dame Amanda Yip have doubled down on Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15 in the Judicial Committee of the Privy Council — but this time with a different result for the claimant. The Board heard an appeal from the Court of Appeal of the Commonwealth of the Bahamas. It was common ground that the relevant law on vicarious liability was the same as under English law. The Board held that the Appellants had been responsible for the Respondent’s false imprisonment, and moreover that – as the entities which employed the tortfeasor – they were vicariously liable for his actions.

Facts

Mrs Bethel was a Jamaican citizen, living in the Bahamas under a valid spousal permit. In the early hours of 13 December 2014, the police raided the bar at which she worked. Mrs Bethel was arrested for “immigration purposes”. She was not charged with an offence but, despite presenting her spousal permit, was turned over to the immigration authorities.

Mrs Bethel was interviewed by Senior Immigration Officer, Mr Bastian. Mr Bastian, after lying to his superior, was granted permission to take Mrs Bethel into his own custody. He drove Mrs Bethel to a number of locations including restaurants and liquor stores, before taking her to his home. There, Mr Bastian twice raped Mrs Bethel and detained her unlawfully overnight. Mrs Bethel went back to the police station and reported the rapes. Judgment There were two issues on appeal: whether Mrs Bethel had been unlawfully detained by the police, constituting tortious false imprisonment; and whether Mr Bastian’s employers were vicariously liable for his torts of false imprisonment, battery and assault.

The Board considered the police false imprisonment issue concisely. They noted that Mrs Bethel had been arrested under section 9 of the Bahamian Immigration Act, which permitted arrest on suspicion that a person had committed an offence if it appeared necessary “in order to secure that the ends of justice […] shall not be defeated”. Officers were required to have in mind the nature of the suspected offence and a factual basis for suspecting it. The Board found that the evidence of the Superintendent who had led the arrests was inconsistent, failing to establish what was in his mind at the time of the arrests or any need to make it in order to secure the ends of justice. Mrs Bethel’s arrest and consequent detention were unlawful, comprising the tort of false imprisonment.

In addressing the vicarious liability issue, the Board emphasised five points from the BXB judgment at [39]:

  • There are two stages. Stage 1 is concerned with the relationship between Defendant and tortfeasor, Stage 2 with the link between the commission of the tort and that relationship.
  • The Stage 1 test is whether the relationship is, or is akin to, one of employment.
  • The Stage 2 test is “whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of his employment or quasi-employment”.
  • The standard common law application of principles from past caselaw should generally be used without needing to examine the underlying policy.
  • “In a difficult case, it can be a useful final check on the justice of the outcome to consider whether the outcome of applying the tests is consistent with the policy underlying vicarious liability”: that the employer should bear the cost of the wrong committed by their (quasi-) employee.

It was common ground that the Stage 1 test was made out. The Board found that the Stage 2 test was clearly satisfied, too. Lord Burrows and Dame Amanda Yip noted that Mr Bastian had the power to detain people as part of his role as a Senior Immigration Officer. He had purported to exercise that power when he took custody of Mrs Bethel, unlawfully detained her, and committed the rapes. Mrs Bethel was under Mr Bastian’s control and afraid of him – partly as he was an immigration official. Mr Bastian was under a common law duty of care to keep Mrs Bethel safe from harm while in his custody. There was a seamless sequence of events, with Mr Bastian never taking off his “metaphorical uniform” [41]–[45].

BXB was distinguished as, unlike in that case, there was no close relationship of friendship between the Claimant and the tortfeasor. The only relationship between Mr Bastian and Mrs Bethel arose from the ostensibly official detention to which Mrs Bethel was subject. The “rape was an abuse of that relationship” [47]. For these reasons, the Board resolved to advise His Majesty that the appeal should be dismissed.

Comment 

Mrs Bethel’s case confirms Lord Burrows’ commitment to his judgment in BXB. The new Privy Council judgment, at [39] contains a concise and – for judges and practitioners – readily quotable summation of its key tenets. The test for vicarious liability seems increasingly settled.

Applying the BXB tests led the Board to conclude that the torts were clearly so closely connected to the actions the tortfeasor was authorised to undertake in his role as a Senior Immigration Officer that it was just to hold his employer vicariously liable. This notwithstanding the lengthy passage in which Mr Bastian drove Mrs Bethel around, including to restaurants and liquor stores clearly unrelated to his employment, before committing the rapes and false imprisonment. The Board’s decision follows, and highlights the continuing relevance of, the pre-BXB judgments concerning abuse of power and sexual assault, including Lister v Hesley Hall Ltd, Christian Brothers, and Armes v Nottinghamshire County Council.

  • The judgment can be read in full here.
  • Catch up with our summary of another recent vicarious liability judgment, X v Lord Advocate, here.
  • The Court of Appeal has recently rejected an appeal on stage 1 of the vicarious liability test in Burger v Wetherspoons [2026] EWCA Civ 804, judgment in full here.