VICARIOUS LIABILITY - BACK TO BASICS

The Courts have grappled with when a person will be an independent contractor rather than an employee in a variety of contexts, including tax and employment law as well as vicarious liability.

Per Lord Justice Newey in the recent Burger case

Introduction

Over recent years there have been a series of leading cases on vicarious liability. Since November 2018, when my book A Practical Guide to Vicarious Liability was published, there have been four decisions of the Supreme Court on the doctrine.

In the earlier Christian Brothers decision of 2012, Lord Phillips explained that vicarious liability was to be determined according to a two-stage test. The first stage required consideration of the relationship between the wrongdoer and the person said to be vicariously liable for that wrongdoing and whether it was “akin to employment”. The second stage focussed on how that relationship was linked to the wrongdoing.

Last month's case in the Court of Appeal is useful because it goes back to basics. Stephanus Burger v (1) Risk Solutions BG Limited and (2) JD Wetherspoon PLC [2025] EWHC 1259 (KB) reminds us that the two-stage test does not arise where the facts confirm a wrongdoer is clearly an independent contractor carrying out business on its own account.

On 25 June 2026, the Court of Appeal confirmed that a pub was not vicariously liable for assaults carried out by its contractor security guards. The security guard company was uninsured and had gone into liquidation, leaving the pub as the only viable defendant in a claim for personal injury from one of its customers. The decision meant that Mr Burger, who had suffered a dislocated hip which required emergency surgery and three nights in hospital, recovered nothing.

Lord Justice Bean (Vice President, Court of Appeal, Civil Division) remarked: Lord Faulks KC told us that Wetherspoons were “very jealous of their reputation”. I do not think their reputation has been enhanced by their stance in this litigation.”

County Court trial

At trial, the claimant alleged that the door supervisors had committed a battery (in this case used unreasonable force) and that both the security guard company (Risk Solutions) and the pub (Wetherspoon) were vicariously liable for their actions. The trial judge in Central London County Court agreed that Wetherspoon was vicariously liable and ordered it to pay £69,775.50 in damages.

Appeal to High Court

Wetherspoon appealed successfully to the High Court where Mr Justice Sweeting confirmed that the Court must first determine whether Wetherspoon’s relationship with Risk Solutions was genuinely one with a “true independent contractor carrying out their own business”. “If it was, there was no need to consider …… whether the relationship between the security guards and Wetherspoon’s was “akin to employment”. “

He confirmed the starting point must be the contractual relationship between Wetherspoon and Risk Solutions which was for the provision of security services by an independent third party. He decided that the factual findings made by the County Court judge were consistent both with the terms of the contract and with the engagement of an independent contractor. The security guard company were a true independent contractor and there was no need to consider whether the working arrangements with the Risk Solutions’ security guards were akin to employment by Wetherspoon.

If there is nothing to indicate a substantial divergence between the contractual position and the reality it may suffice to look to the terms of the contract with the tortfeasor. It will sometimes be clear from those that a person is an independent contractor.

The contract is entirely consistent with Risk Solutions carrying on a business of its own with the attendant prospect of profit and loss and freedom to supply its services to other clients

Appeal to Court of Appeal

Not only the High Court, but the Court of Appeal also highlighted various terms in the contract including:

“3.7 [Risk Solutions] acknowledges and agrees that it will… remain responsible for the direction, management and control of each of the Security Staff who shall be involved in the performance of the Services. [Risk Solutions] shall instruct, manage, control and direct each of the Security Staff in the performance of the Services required hereunder, in a thorough, appropriate and sufficient manner so that each of the Security Staff shall perform the Services in accordance with the terms of this Agreement.

3.8 Neither JDW [Wetherspoon] nor its servants, agents, employees or sub-contractors (save only for [Risk Solutions] and its servants, agents, employees and sub-contractors) shall be responsible for the direction, instruction, management or control of the

Security Staff.

The Court of Appeal affirmed Sweeting J’s decision.

Points to consider

1. Have you recently reviewed your contracts with subcontractors?

2. What is their method of work and does it reflect what is in the agreements?

3. Might the subcontracrors be regarded as your employees and, if so, what can be done to rectify this?

Mariel Irvine

9 July 2026