Vicarious liability and contracted bouncers – haven’t we been here before?
In Burger v JD Wetherspoon and Risk Solutions BD Ltd [2025] EWHC 1259 (KB) the High Court, on appeal, found that JD Wetherspoon (JDW) was not vicariously liable for an assault carried out on a customer by two “door supervisors” employed by its contractor, Risk Solutions BD Ltd (RS).
RS was a genuine independent contractor. As such, it was not necessary to consider whether the relationship between JDW and the door supervisors was sufficiently analogous to an employment relationship to impose vicarious liability.
The facts
JDW engaged RS to provide security services at one of their pubs. On 5th August 2018, Mr Burger was “restrained” by two of RS’s door supervisors with such force that he suffered a dislocated hip. It was, said the trial judge, an “unprovoked and appalling attack.”
RS failed to respond to the service of proceedings and judgment in default was entered. That judgment was not enforced, however, and proceedings continued against JDW.
The terms of the Security Service Agreement (Agreement) between JDW and RS stated that RS would be responsible for the direction, management and control of their door supervisors. Control of those employees, it was agreed, would be the sole responsibility of RS and it was required to maintain insurance covering its employees’ actions.
JDW had the power to remove door supervisors in the event of a breach of the Agreement. It did not have a right to hire or fire them.
JDW was entitled to specify what uniform RA’s employees should wear. The Agreement specified that they should wear a “uniform or badge provided by [RS], in particular wearing at all times a visible badge or other marking identifying him as the employee of [RS]”. The Agreement specified a uniform of “black tailored trousers, black shoes (no trainers), shirt with collar (no polo shirts). A waistcoat, formal jacket or Crombie coat is optional”.
The trial
The judge had to consider the stage 1 and stage 2 tests for vicarious liability.
He was satisfied, firstly, that the actions of the door supervisors were sufficiently closely connected with the duties they were employed to perform to impose vicarious liability on the employer. Stage 1 was satisfied.
As for stage 2, the judge concluded that the relationship between JDW and the door supervisors was “akin to employment” and that their tortious conduct had occurred in the course of that quasi-employment.
As both stages of the test were satisfied, JDW was found vicariously liable for the actions of the door supervisors.
JDW appealed.
The appeal
The High Court had no difficulty concluding that the activities of the door supervisors were sufficiently closely connected with their authorised activities to give rise to vicarious liability.
Those authorised activities included maintaining order and managing entry to the premises. They were authorised, under the contract between JDW and RS, to perform “the restraint”. The assault had taken place while the RS employees were working as door supervisors at JDW’s premises. Their actions, although excessive and appalling, were directly linked to their employment function. The trial judge was right to conclude that the Stage 2 test was satisfied.
As for the Stage 1 test, however, he was incorrect.
Proper consideration of the characteristics of the relationship between JDW and RS, both in terms of their contractual relationship and the working reality (how the security services were, in fact, delivered), pointed to the conclusion that RS was a true independent contractor, carrying on its own business.
The elements of control JDW exercised under the contract were in no way inconsistent with that and were entirely typical of such commercial relationships.
Similarly, the fact that security was integral to the pub operation did not render the door staff quasi-employees of JDW.
Comment
Most personal injury practitioners will remember the case of Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18, in which vicarious liability was imposed on a nightclub operator for the actions of a doorman provided by their contractor. On first hearing the circumstances of the current case, the temptation may be to see it as a re-run of Hawley. However, the facts were different in certain crucial respects (in particular, the degree of control exercised by Luminar management) and the world has moved on since Hawley. In particular, we now have the Supreme Court’s clarification of the Stage 1 test in Various Claimants v Barclays Bank [2020] UKSC 13.
The Supreme Court in Barclays made clear that the conventional distinction between a contract of employment and a contract for services still stands. The first step is to consider whether the reality of the relationship is that of a “true independent contractor”. If the third party is a genuine independent contractor (and not, for example, a labour-only sub-contractor working under the guidance and control of the defendant), vicarious liability does not arise and the various tests the courts have developed to determine whether the relationship is “akin to employment” become unnecessary.
Only where it is unclear whether the third party is a true independent contractor does one need to consider whether the relationship between tortfeasor and defendant is sufficiently analogous to an employment relationship to make it “fair, just and reasonable” to impose vicarious liability.
The tests to be applied in such circumstances were re-visited recently by the Supreme Court in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15, a judgment which considered the application of both the Stage 1 and Stage 2 tests. We reported on BXB here: Supreme Court rules again on boundaries of vicarious liability.
This case demonstrates once again the need for close analysis of the factual circumstances, with superficially similar cases sometimes giving rise to entirely different conclusions.
