Businesses routinely engage third-party contractors to provide services ranging from security and facilities management to logistics and maintenance. In Stephanus Bernardus Burger v Risk Solutions BG Limited & Anor [2026] EWCA Civ 804, the Court of Appeal considered whether a business can be held vicariously liable for the wrongful acts of individuals supplied by an independent contractor, providing a useful reminder of the limits of that doctrine.

This claim arose from an incident occurring on 5 August 2018 at a pub operated by J D Wetherspoon plc (JDW). The Claimant alleged that he was restrained by two doormen with such force that he sustained injuries resulting in emergency surgery. The doormen were employees of Risk Solutions BG Limited who were engaged by JDW under a security services agreement.

Mr Burger issued proceedings in the County Court against both JDW and Risk Solutions alleging that they were vicariously liable for the doormen’s conduct. Default Judgement was obtained against Risk Solutions which is now dissolved. The claim therefore solely proceeded against JDW. The Recorder determined that Mr Burger had been assaulted and that JDW was vicariously liable.

This finding was overturned on appeal to the High Court and the Plaintiff challenged the High Court’s findings to The Court of Appeal. All three Court of Appeal Judges dismissed the Claimant’s appeal and concluded that a finding of vicarious liability will not be made where the tortfeasor is deemed to have been an employee of an independent contractor.

The approach to determining vicarious liability remains a two-stage test. In a case such as this, stage one is to determine whether the relationship between defendant and tortfeasor is or is akin to an employer-employee relationship. Stage two considers how that relationship is linked to the tort.

The Recorder in considering the first stage was satisfied that the relationship between the doorman and JDW was akin to employment. He was satisfied that the provision of security was integral to and for the benefit of JDW’ business, JDW was able to specify and control the security guards uniform, the doormen were part of an established team and JDW was the entity responsible for counting their hours on a system through which payment was made.

The High Court Judge, Sweeting J, disagreed with this interpretation of the relationship. He commented that the integral nature of security to the operation of a pub does not transform the relationship to one akin to employment and deemed the contract between JDW and Risk Solutions to be a contract for services, not of service.

The Court of Appeal Judges upheld the High Court’s decision with Newey LJ remarking as follows:

“He ought to have considered at the outset whether Risk Solutions was an independent contractor; to have found that it was; and, that being so, further to have concluded that the circumstances were not such as to make JDW vicariously liable for torts committed by employees of Risk Solutions through whom the latter was performing its obligations under its engagement with JDW.”

In summary, when assessing whether vicarious liability will apply, the nature of the relationship between the Defendant and the tortfeasor will depend on the facts of the individual case. However, it is worth noting that there will be no finding of vicarious liability where the tortfeasor is or is an employee of a true independent contractor carrying on his own independent business. The independent contractor may be vicariously liable but the any other party to the contract will, generally speaking, not be vicariously liable.

 

For legal guidance and advice regarding vicarious liability, please contact  Natasha Runciman or any member of our Dispute Resolution Team for more information

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.