By Neil Todd, Head of Trade Union Law Group
Background
Mr Stephanus Burger suffered a serious injury after being forcibly restrained by two door supervisors outside a Wetherspoon pub in Guildford in August 2018. The incident resulted in a dislocated hip, emergency surgery, and a hospital stay. The door supervisors were employed by Risk Solutions BG Ltd, a security company contracted by JD Wetherspoon plc to provide door staff at the pub.
Mr Burger brought claims against both Risk Solutions and Wetherspoons, alleging that the door supervisors had committed a battery and that both companies were vicariously liable for their actions. Risk Solutions failed to defend the claim, and default judgment was entered against it. However, the company had already entered liquidation and was later dissolved.
The claim against Wetherspoons proceeded to trial. The County Court found that Mr Burger had been assaulted and concluded that Wetherspoons was vicariously liable, awarding damages of almost £70,000. The judge considered that the security staff were sufficiently integrated into Wetherspoons’ operation and that the relationship was akin to employment.
Wetherspoons successfully appealed to the High Court, and Mr Burger then appealed to the Court of Appeal.
Outcome
The Court of Appeal dismissed Mr Burger’s appeal and confirmed that Wetherspoons was not vicariously liable for the actions of the door supervisors.
The finding is consistent with the approach taken in vicarious liability cases such as Barclays Bank plc v Various Claimants, where the Court considered whether the wrongdoer was an employee or independent contractor. In Barclays, an occupational health doctor who assaulted bank employees during medical examinations was found to be an independent contractor because the bank did not control his practice and he was free to take appointments from others.
Applying that distinction here, the Court found that Risk Solutions was operating as an independent contractor. It provided specialist security services under a commercial contract, retained responsibility for its own staff, and remained in control of how those staff were recruited, managed, and directed. The door supervisors were identifiable as Risk Solutions employees through their uniform and badges and were supplied to the pub under a contract for services rather than as Wetherspoons’ employees.
Although Wetherspoons specified service standards, dress requirements, and operational expectations, these were ordinary features of a commercial services contract. They did not amount to the level of day-to-day control required to make Wetherspoons effectively responsible for the door supervisors as though they were its employees.
The Court also rejected comparisons with Hawley v Luminar Leisure Ltd, where a nightclub operator was found liable for the actions of contracted door staff because there had been an effective transfer of control and responsibility. On the evidence in Burger, Wetherspoons did not exercise that level of control.
As a result, Wetherspoons could not be treated as the door supervisors’ temporary employer and was not vicariously liable for the assault.
Comments / Key takeaways
The decision is not a surprising one, but it is a useful reminder that vicarious liability remains fact-sensitive and often difficult to apply. The key question is still whether the alleged wrongdoer was an employee, or in a relationship closely akin to employment, rather than a genuine independent contractor.
Control remains central. Courts will look at who recruited, trained, managed, directed, and placed the individuals, who carried the commercial risk, and whether the contractor was operating an independent business in its own right. The fact that security staff were important to the operation of the pub was not enough to make Wetherspoons liable where Risk Solutions retained control over them.
The case can also be distinguished from BXB v Watch Tower and Bible Tract Society of Pennsylvania. BXB was not an independent contractor case in the same way. The issue there was whether the tortious act was sufficiently connected with the individual’s role at the time it occurred. Although the claimant had first met the wrongdoer through his duties as an elder, the assault took place in a private setting, during a visit arising from a close personal relationship. The Supreme Court emphasised that the relevant questions included whether the wrongful act arose from a risk created by the defendant’s assignment of activities to the wrongdoer and whether those activities were integral to the defendant’s business activities.
For claimants, the judgment highlights the practical importance of identifying the correct defendant. In cases involving contracted workers, the safest route will usually be to pursue the actual employer where possible, as that organisation is more likely to have control over recruitment, training, deployment, risk assessments, and day-to-day supervision.
The difficult outcome for Mr Burger appears to have been driven by the fact that Risk Solutions had been dissolved and was no longer financially solvent. If insurance had been available, one possible route may have been to restore the company and seek to enforce any judgment against its insurer. Without that route, the claimant was left with no effective recovery despite establishing that he had been assaulted.
