The Court of Appeal’s decision in Burger v Risk Solutions BG Ltd provides important clarification and reconfirmation of the independent contractor defence. In a case arising from a serious assault by door supervisors outside a Wetherspoon pub, the Court reaffirmed the traditional boundary between employment and independent contractor status, rejecting an attempt to extend vicarious liability to a business that had outsourced security services.
This judgment represents an endorsement of the Supreme Court guidance Barclays Bank v Various Claimants (in which Keoghs were instructed) and BXB v Watch Tower, confirming that true independent contractors still remain outside the scope of vicarious liability.
The claimant suffered a serious injury after being restrained by door supervisors outside a pub operated by JD Wetherspoon (JDW). The supervisors were employed not by JDW but by Risk Solutions BG Ltd, a specialist security contractor engaged under a commercial contract. Although judgment was obtained against Risk Solutions, the company had entered liquidation and was dissolved, leaving JDW as the only viable defendant for the claimant to pursue.
At first instance, the Recorder found that the door supervisors had committed an unlawful assault and held JDW vicariously liable. The claimant was awarded damages of nearly £70,000. The decision relied upon the concept where relationships are ‘akin to employment’, including factors such as integration, business benefit and elements of control.
However, the High Court overturned this decision finding that the Recorder had erred by failing to consider the threshold question of whether Risk Solutions was a true independent contractor. In this respect, the contractual arrangement showed that Risk Solutions did in fact retain control over its staff and operated as a separate business to JDW.
The Court of Appeal upheld the High Court’s decision, confirming that Risk Solutions was clearly a genuine independent contractor and that JDW was not vicariously liable for the acts of its employees.
The Court reaffirmed that the expansion of vicarious liability does not extend to true independent contractors. The independent contractor defence therefore remains a firm boundary beyond the scope of vicarious liability. In particular, it was reaffirmed that the correct approach requires first determining whether the tortfeasor was operating within an independent business. If so, there is no need to consider whether the relationship is akin to employment.
The Court also emphasised the importance of contractual terms, particularly where they clearly allocate control, management and responsibility to the contractor. Features such as integration into the defendant’s business or the importance of the services provided are still not sufficient to establish vicarious liability.
The decision therefore provides confirmation of the established guidance and represents a clear reaffirmation of the limits of vicarious liability.
Despite the harsh outcome for the claimant given the defendant against which liability would have rested was insolvent and there was no insurance to respond to the claim, the Court maintained the traditional distinction between employees and independent contractors must remain. This therefore represents a further authoritative example of the courts resisting attempts to extend vicarious liability.
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