Vicarious liability and independent contractors: further refinement by the Court of Appeal

The Facts

JD Wetherspoon (JDW) engaged a company called Risk Solutions BG Ltd (RS) to provide door security services at their premises pursuant to a security services agreement. 

On 5 August 2018, Mr Burger (C) was “restrained” by two RS door supervisors, as a result of which he sustained serious injury. 

He brought proceedings against both JDW and RS. RS failed to respond, and C obtained judgment in default against them. However, the company had by that stage gone into liquidation and was subsequently dissolved. Unfortunately for C, there was no effective insurance cover in place. The judgment against RS was worthless. 

The claim proceeded against JDW, C’s contention being that JDW were vicariously liable for the actions of the RS employees. 

C succeeded initially, Recorder Shepherd concluding that JDW was vicariously liable. JDW appealed, successfully. 

The matter came before the Court of Appeal, which found, unanimously, that:

1. RS was a true independent contractor on the facts;
2. Whilst the door supervisors were not themselves independent contractors, a defendant will not usually be vicariously liable for the tortious acts of the employee of a true independent contractor. The position is otherwise only where, as in Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18, there has been “effectively and substantially a transfer of control and responsibility” to the defendant. 

The Law

Vicarious liability is a form of strict liability. At its heart, it recognises that, in certain circumstances, it may be just and reasonable to impose liability on an innocent defendant in respect of the tortious acts of a third party. 

The question has always been two-fold: what kind of relationship needs to exist between the defendant and the tortfeasor, and in what way must the tortious conduct be connected to that relationship?

Until the turn of the Millennium, the answer to those questions had been relatively straightforward, in principle if not always in practice: an employer was vicariously liable for the negligent acts of its employee committed by them in the course of employment. 

However, borne of a desire to bring intentionally wrongful conduct within the scope of vicarious liability, and recognising that modern working arrangements did not fit neatly into the traditional employer/employee model, the courts began to expand the ambit of vicarious liability considerably. 

The position currently is that, to establish vicarious liability, two tests must be satisfied:

1. Is the relationship between defendant and tortfeasor one of employment or akin to employment?
2. Is there a sufficiently close connection between that relationship and the acts which the tortfeasor was authorised to do?

In the case of Various Claimants v Barclays Bank PLC [2020] UKSC 13, the Supreme Court made clear that, where the tortfeasor was a “true” independent contractor, the defendant engaging them could not be held vicariously liable for the independent contractor’s actions. The question to be addressed was whether the tortfeasor was carrying on business on his own account, or whether he was in a relationship akin to employment with the defendant. 

Only in “doubtful cases”, said Baroness Hale, would it be necessary to analyse the relationship between tortfeasor and defendant to consider whether it was sufficiently akin to employment to make it just and reasonable to impose vicarious liability.  

The facts in Burger were, however, rather different. 

Unlike in Barclays, the independent contractor and tortfeasor were not one and the same. How, then, should the court approach the analysis?

Delivering the leading judgment, Lord Justice Newey was clear: 

“As it seems to me… the relationship between the defendant and the tortfeasor’s employer will be of central importance where the tortfeasor was employed by an independent contractor. I agree with Lord Faulks (leading counsel for JDW) that the defendant will not usually be vicariously liable in such a case.”

In support, he cited comments by Lord Reed in another leading vicarious liability authority, Cox v Ministry of Justice [2016] UKSC 10, who had referred to activities of a tortfeasor which were “entirely attributable to the conduct of a recognisably independent business of his own or of a third party”, approved by Baroness Hale in Barclays. In addition, LJ Newey referenced certain supportive observations in the Clerk & Lindsell on Torts, 24^th ed.

However, as the word “usually” indicates, LJ Newey recognised that there may be circumstances where a defendant could be vicariously liable for the tortious acts of the employee of a sub-contractor. The case of Hawley, he observed, provided just such an example. 

In Hawley, a case which also concerned an assault by door supervisors employed by an independent contractor, the court concluded that the defendant had assumed a significant degree of control and responsibility for the work undertaken by their independent contractor’s employees. The degree of the transfer of control and responsibility was such that the defendant was deemed to be the tortfeasor’s “temporary employer” and, on that basis, was fixed with vicarious liability. 

Comment

It seems clear that simply proving the tortfeasor’s employer was an independent contractor, as the Court of Appeal had no difficulty finding in Burger, is not necessarily the end of the story. The  court must still consider whether there has, in fact, been a transfer of control and responsibility to the defendant.

If the reality “on the ground” indicates that the relationship between defendant and tortfeasor was “akin to employment”, as the court found (although expressed a little differently) in Hawley then, as LJ Newey conceded, vicarious liability may attach:

“It seems to me that a defendant will also be vicariously liable for a tort committed by an employee of an independent contractor in circumstances such as those in Hawley where there has been “effectively and substantially a transfer of control and responsibility” to the defendant.

But, if that is the case, the focus on the relationship between independent contractor and defendant is arguably something of a second-tier issue where the independent contractor and tortfeasor are not one and the same. 

One might conclude that the main focus must be where it has always been: on the nature of the relationship between tortfeasor and defendant. The terms of the contract between defendant and contractor may inform that analysis, but cannot be definitive in themselves. 

Nevertheless, if the defendant is able to establish that it engaged a genuine independent contractor, a process which will require careful examination of the contract terms and practical reality, the case of Burger will present a significant obstacle to any claim that the defendant should be found vicariously liable for the negligence of its independent contractor’s employees.