Stephanus Burger v Risk Solutions BG Limited & J D Wetherspoon PLC [2026] EWCA Civ 804

This case is a good example of how the modern law on vicarious liability should be applied to the facts of a case.

That law can be found in the Supreme Court cases of Various Claimants v Barclays Bank PLC [2020] UKSC 13 and BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15. There are two stages to consider in determining vicarious liability. Stage 1 is concerned with the relationship between the defendant and the tortfeasor. Stage 2 is concerned with the link between the commission of the tort and that relationship. Both stages must be addressed and satisfied if vicarious liability is to be established.

At paragraph 58 (ii) in BXB Lord Burrows said:

“The test at stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship. But in applying the ‘akin to employment’ aspect of this test, a court needs to consider carefully features of the relationship that are similar to, or different from, a contract of employment. Depending on the facts, relevant features to consider may include: whether the work is being paid for in money or in kind, how integral to the organisation is the work carried out by the tortfeasor, the extent of the defendant’s control over the tortfeasor in carrying out the work, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, what the situation is with regard to appointment and termination, and whether there is a hierarchy of seniority into which the relevant role fits. It is important to recognise, as made clear in Barclays Bank, that the ‘akin to employment’ expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant.”

The test at stage 2 (the close connection test) is whether the wrongful conduct was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment or quasi-employment.

On 5th August 2018, Stephanus Burger was restrained by two door supervisors outside a JD Wetherspoon pub in Guildford with such force that he suffered a dislocated hip. The door supervisors were employees of Risk Solutions which had been engaged by Wetherspoons to provide security services. Mr Burger issued proceedings against Risk Solutions and Wetherspoons. Risk Solutions neither acknowledged service nor filed a defence. A default judgment was entered against them, but by then they had already gone into creditors’ voluntary liquidation, and the company was eventually dissolved.

The claim proceeded against Wetherspoons. At the trial in September 2023, the judge found that Mr Burger had been assaulted and Wetherspoons were vicariously liable. They were ordered to pay damages of just under £70,000. Wetherspoons appealed. Mr Justice Sweeting allowed their appeal holding that they were not vicariously liable. Mr Burger appealed to the Court of Appeal.

Lord Justice Newey gave the main judgment in the Court of Appeal. At paragraphs 14 to 38 of the judgment, he gave a helpful summary of the major decisions on vicarious liability since the turn of the century.

Lord Justice Newey examined the provisions of the contract between Risk Solutions and Wetherspoons at some length at paragraphs 7 to 11 of the judgment. Those paragraphs should be referred to for all the details of that contract. In summary under the contract Risk Solutions decided how many door supervisors there should be at the pub on particular days and at particular times. This was to be agreed with Wetherspoons having regard to amongst other things Wetherspoon’s admissions policy. Risk Solutions’ door supervisors were to maintain order and security, control entry, manage and control queues and require people to leave the pub if they were causing or threatening injury or damage. There was a dress code for the door supervisors. One of its requirements was that the door supervisors should wear a visible badge or something else identifying them as an employee of Risk Solutions. Risk Solutions agreed that it remained responsible for the direction, management and control of the door supervisors. Wetherspoons were stated not to be responsible for the management or control of the door supervisors. Risk Solutions agreed to indemnify Wetherspoons against liabilities resulting from their own conduct and that of the door supervisors they supplied. There was specific provision for Risk Solutions to indemnify Wetherspoons for the acts or omissions of the door supervisors for which Wetherspoons were found vicariously liable for.

Lord Justice Newey highlighted the fact that both Baroness Hale in Barclays (paragraphs 7 to 8) and Lord Burrows in BXB (paragraph 58 (ii)) had said that the expansion of vicarious liability at the first stage to include whether the relationship was “akin to employment” did not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant.

The parties in Burger had disagreed on the effect of Lord Burrows’ final sentence in paragraph 58 (ii): “It is important to recognise, as made clear in Barclays Bank, that the ‘akin to employment’ expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant.”  Wetherspoons had argued that this final sentence acted as a proviso. Mr Burger had argued that the list before it should be used to determine whether a person had a relationship “akin to employment” on the one hand or was an independent contractor on the other. It was further submitted that Lord Burrows was not purporting to provide a comprehensive list of matters that could be material but rather had said that the relevant features may “include” those identified.

At paragraph 53 Lord Justice Newey said that it may not matter whether the final sentence was seen as a proviso or alternatively it was recognised that the list of features was not comprehensive. He thought that what was important was that other matters might well be of significance (and sometimes of greater significance) when evaluating whether a person was an independent contractor. He did not think that Lord Burrows’ list captured by any means all of the factors that could bear on whether a person was carrying on his own independent business and was therefore an independent contractor.

Lord Justice Newey emphasised that if there was nothing to indicate a substantial divergence between the contractual position and the reality then all that may need to be done was to look at the contractual terms. Sometimes, it would be clear from those that the person was an independent contractor. He pointed out that most of the major decisions on vicarious liability since the turn of the century had been concerned not with tortfeasors who were arguably independent contractors but with individuals who while not employees had a relationship with the defendant that had some similarity to employment. He said that Lord Burrows’ list was apt for such a situation. He said that it could not be taken to be the “last word” when the question was whether a tortfeasor was an independent contractor.

Lord Justice Newey said that Wetherspoon’s contract with Risk Solutions was entirely consistent with Risk Solutions carrying on a business of their own with the attendant prospects of profit and loss and freedom to supply their services to other clients. It made no difference that Risk Solutions were paid for their services, that those services were carried out for Wetherspoon’s benefit or that the services were important to Wetherspoons. In this case the tort had been committed by the employees of an independent contractor. If somebody has employed an independent contractor to do work for him then the employer is not responsible for any tort committed by that contractor during the execution of the work. The employees of the independent contractor while acting as such stood in the same position as their employer. The independent contractor will be liable for their employee’s tort, but the employer of the independent contractor will not be liable for it.

Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 was another case where a customer had been assaulted by a doorman. Luminar, a club operator, had contracted with ASE for the provision of security services at one of their clubs. ASE had provided a doorman who had assaulted Mr Hawley while working at one of Luminar’s clubs. The trial judge had found that Luminar were to be deemed to be the doorman’s “temporary employer”. On appeal, the Court of Appeal found that the judge had been entitled to find this. The result was that Luminar were vicariously liable for the doorman’s assault. The court said that this was not a case where it might have been appropriate to find dual vicarious liability (see Viasystems v Thermal Transfer [2005] EWCA Civ 1151) on the part of ASE and Luminar because there had been “effectively and substantially a transfer of control and responsibility from ASE to Luminar”.

In Hawley the evidence was that the Luminar manager was in overall control of security. She treated all those employed at the club the same: house employees and ASE employees were all part of her team. All the doormen including the head doorman took their orders from her. Luminar’s management decided which customers to admit, which to exclude and which to eject. When the doormen stepped in, they knew they did so taking their authority to act from Luminar’s manager. It was Luminar who instructed the doorman not to use force unless absolutely necessary and to use as little force as possible. The doormen wore Luminar uniforms. The court did not disagree with the trial judge’s assessment that the “Luminar management exercised detailed control not only over what the door stewards did but how they were to do it.”

In Burger the particulars of claim had included an allegation that Wetherspoons became the “temporary deemed employer” of the door supervisors in accordance with the principles applied in Hawley. In the end the judge did not decide the case on this basis, and Mr Burger did not pursue the point in the appeal to the Court of Appeal.

Lord Justice Newey said that he did not think the facts found by the judge would have sustained the conclusion that Wetherspoons were to be regarded as the door supervisors’ “temporary deemed employer”. He agreed with Mr Justice Sweeting’s comment that although Hawley was factually similar to Mr Burger’s case in that it involved a doorman provided by a contractor the degree to which the door supervisors on duty in that case were subordinated to the active management of the club’s senior management was considerably greater than the position in Mr Burger’s case.

Lord Justice Newey accepted, however, that a defendant will be vicariously liable for a tort committed by an employee of an independent contractor in the circumstances such as those in the case of Hawley where there had been “effectively and substantially a transfer of control and responsibility” to the defendant.

As a result of finding that Risk Solutions were an independent contractor engaged by Wetherspoons stage 1 of the test for vicarious liability was not satisfied so that stage 2 did not need to be considered. Consequently, the Court of Appeal dismissed Mr Burger’s appeal.

Stephanus Burger v Risk Solutions BG Limited & J D Wetherspoon PLC [2026] EWCA Civ 804 judgment

12th Aug 2026

Adrian Higgins

Call 1990