Vicarious liability and independent contractors

Morrisons, Barclays Bank plc, and Jehovah's Witnesses - an unlikely combination, you might think. Yet each has been involved in leading cases on vicarious liability over the past decade, shaping when and whether the doctrine will engage, and determining what truly constitutes an independent contractor when it comes to the imposition of liability.

With an application for permission to appeal having recently been lodged with the Supreme Court, will the case of Burger v J D Wetherspoon plc (2026) go on to make any material change in the law?

Background

Mr Burger was a patron of J D Wetherspoon plc ("Wetherspoons") and visited one of their pubs on 5 August 2018. He complained that security guards employed by Risk Solutions BG Limited ("Risk Solutions") restrained him with such force that he suffered a dislocated hip, requiring emergency surgery. The judge at first instance described what had happened as "appalling", finding that two members of door staff jumped on the claimant's back and dragged him to the ground.

Proceedings were issued against both Risk Solutions and Wetherspoons nearly three years later. Risk Solutions did not acknowledge service of the proceedings or enter a defence and, consequently, judgment in default was entered against them in August 2021. The company was dissolved the following month, and it transpired they did not have valid insurance in place, which would otherwise have come to Mr Burger's aid, less any deductible.

The claim was fully contested by Wetherspoons. Mr Burger argued that Wetherspoons were vicariously liable for the actions of the door staff. Whilst the court of first instance agreed, this was successfully appealed by Wetherspoons in the High Court. The claimant recently lost his appeal of that High Court decision in the Court of Appeal.

Vicarious liability

The doctrine of vicarious liability is, put at its simplest, a form of strict liability where a party - ordinarily an employer - is responsible for the acts or omissions of employees or individuals in a relationship "akin to employment".

However, the law on vicarious liability had been "on the move" throughout the past decade, so much so that it barely stopped for breath. With these cases often turning on important policy issues, and the decisions often being so fact-dependent, a significant body of Supreme Court authority has been developed to define and demarcate when vicarious liability should apply and to whom.

The multi-part guiding principles established in Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools (2012) ("Christian Brothers") underpin the decision-making process as to whether it is fair, just and reasonable on policy grounds to impose liability where an employer/employee relationship could be said to exist:

• Means: The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against the liability.
  
  
• Activity undertaken: The tort will have been committed as a result of activity being taken by the employee on the behalf of the employer.
  
  
• Furtherance of the employer's aims: The employee's activity is likely to be part of the business activity of the employer.
  
  
• Creation of risk by the employer: The employer, by employing the employee to carry on the activity, will have created the risk of the tort committed by the employer.
  
  
• Control: The employee will, to a greater or lesser degree, have been under the control of the employer.

Vicarious liability comprises of two stages. Stage one: Is the relationship between the organisation and individual one of employer/employee, or a relationship akin to employment?

Stage two: As refined in the Supreme Court case of Trustees of the Barry Congregation of Jehovah's Witnesses v BXB (2023), was what occurred so closely connected with acts the employee (or quasi-employee) was authorised to do that it could fairly and properly be regarded as being committed while that individual was acting in the course of employment or quasi-employment?

These two stages are considered with reference to the "Christian Brothers" policy principles in making an overall determination as to the imposition of liability.

Independent contractors

There is, however, a distinction to be made for the truly independent contractor. Whilst always fact-specific, an individual who qualifies as an independent contractor is unlikely to satisfy the criteria for quasi-employment, as outlined in Barclays Bank plc v Various Claimants (2020).

What makes for a true contractor in cases for common law negligence? Taken at its most straightforward, an individual who works under a contract of employment is likely to fall under the "employee/akin to employment" category.

Whereas an individual who performs work under a contract of services, furthering their own business' aims in supplying those services, is more likely to be classified as a true independent contractor.

Where it is established a party is an independent contractor and therefore not an employee, the engaging company will be able to argue that it is not vicariously liable for the acts or the omissions of the contractor. The Christian Brothers test will not enter the equation.

It is difficult not to feel enormous sympathy for Mr Burger, who was badly injured as a consequence of this incident and rightly has a valid judgment against Risk Solutions - a judgment unlikely to have been satisfied in view of the company's dissolved status and lack of insurance.

Whether he will be able to distinguish his case from Barclays Bank plc, and whether the Supreme Court will permit his appeal, remains to be seen.

Practical tips

• Contractors should ensure that they have comprehensive insurance to cover risks such as these. Any insurance should cover not just a claimant's damages and costs, but also defence spend, and any claims from the company contracting the services.
  
  
• Reserves should be maintained where high deductibles apply.
  
  
• Insurance policies should be carefully scrutinised for exclusion clauses for assaults or deliberate acts. This is particularly important where this might be a potential risk to a contracting company, e.g. at establishments serving alcohol, where the risk of a physical assault is higher.
  
  
• Many contracts will include broad indemnity clauses in favour of the company, so contractors may be responsible for all losses and costs the company incurs defending the same claim.
  
  
• Companies engaging contractors should ensure that contractors have adequate insurance to minimise the likelihood of companies being brought into litigation unnecessarily. Copies of insurance policies should be requested annually.
  
  
• Companies may also wish to check upon the financial health of the businesses they contract with by considering Companies House filings periodically and setting up news alerts on each individual contractor.
  
  
• Companies such as Wetherspoons can face concurrent claims under the Occupiers' Liability Act 1957 as they have a statutory duty to visitors whilst using the premises under the Act. Section 2(4)(b) may not always engage due to its particular construction. Arguments can further be made as to what might constitute "premises" and whether the Act ought to engage at all. To be best placed to defend a claim, evidence of consideration of risk, planning, and selection of contractors will assist.
  
  
• Claims in ordinary negligence may also be pursued, so checks as to the suitability of suppliers should be undertaken, even if on a spot basis. Where contracts permit a company to have some control over the selection of individual staff supplied, consider whether that discretion ought to be exercised.
  
  
• Contract terms will be key to ensure that a distinction can be made that a supplier is a true independent contractor. Indemnity clauses should be tightly drafted to limit any liability on the part of the company and to ensure the ability to recoup any losses from the contractor.
  
  
• Claimants may wish to make an assessment as to whether a Criminal Injuries Compensation Authority application ought to be pursued. Not all matters will be eligible, and there are stringent criteria to be observed, including a short window in which to submit an application.
  
  
• What might constitute a "contractor" in common law cases such as these, may look somewhat different in cases involving employment law or tax, and common law cases may not be determinative.

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The information in this article is correct at the time of writing. It is intended as general guidance and should not be treated as legal advice. Every situation turns on its own facts, and tailored advice should be sought before taking any action.

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