PI Brief Update

Left holding the door: Violent bouncers and vicarious liability - Michael Brooks Reid, Temple Garden Chambers

24/07/26. Michael Brooks Reid discusses the decision of the Court of Appeal in Burger v Risk Solutions BG Ltd [2026] EWCA Civ 804 (“Burger”), an interesting clarification of the vicarious liability doctrine where a tortfeasor is an employee of an independent contractor.

Facts

Mr Burger (C) was restrained by two door supervisors (or “bouncers”) outside a Wetherspoon’s pub with such force that he suffered serious injuries. The bouncers were employed by D1, Risk Solutions BG Limited (“Risk”), which had contracted with D2, Wetherspoon plc (“Wetherspoon”) to provide security services.

C sued both Risk and Wetherspoon in battery, contending that each was vicariously liable for the bouncers’ conduct. Before C could recover any damages, Risk was in liquidation and was subsequently dissolved. The claim proceeded against Wetherspoon.

At trial, the Recorder found that C had been assaulted and held Wetherspoon vicariously liable. Sweeting J found that the Recorder had misapplied the vicarious liability test and allowed the appeal. C appealed to the Court of Appeal.

Issue

The central issue was whether Wetherspoon could be vicariously liable for the battery committed by employees of Risk. The key question was: which relationship fell to be scrutinised: (i) the relationship between Wetherspoon and the bouncers, tested against the “akin to employment” features identified by Lord Burrows in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15 (“BXB”); or (ii) the prior and potentially determinative question of whether Risk was a true independent contractor carrying on its own business, such that the relationship between Wetherspoon and the bouncers was besides the point.

Law

The starting point is the well-known two-stage test from Christian Brothers ([2012] UKSC 56). Stage 1 asks whether the relationship between the tortfeasor and the defendant is one of employment, or “akin to employment”; stage 2 asks whether that relationship is sufficiently connected with the tortious act. Lord Phillips identified five policy “incidents” which typically make it fair to impose vicarious liability even where there is no contract of employment.

In the Barclays Bank case ([2020] UKSC 13), Baroness Hale emphasised that the “akin to employment” expansion in Christian Brothers did not disturb the conventional distinction between employees (or those akin to employees) and true independent contractors: where a tortfeasor is clearly carrying on business on his own account, there is no need to weigh Lord Phillips’ five incidents at all.

More recently, in BXB, Lord Burrows set out a list of features which enable the court to determine whether a relationship is “akin to employment”.

C had also sought to rely on Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 (“Hawley”), another case in which aclaimant sued a nightclub for the tort of bouncers employed by an independent contractor. In Hawley, however, the defendant was found to be a “temporary deemed employer”, a finding upheld on appeal; it exercised near-total control over the door staff such that there had been “effectively and substantially a transfer of control and responsibility” from the contractor to the defendant.

Decision

The Court of Appeal (Newey, Jeremy Baker and Bean LJJ) unanimously (with a heavy heart – see the concurring judgment of Bean LJ) dismissed C’s appeal.

Giving the leading judgment, Newey LJ held that the Recorder had erred in approaching stage 1 solely by reference to Lord Burrows’ list of features in BXB, without first asking whether Risk was a true independent contractor, which it plainly was. The critical relationship for stage 1 purposes was that between Wetherspoon and Risk, not that between Wetherspoon and the bouncers.

Wetherspoon’s administration of an hourly payment system, the fact that security was integrally important to Wetherspoon’s business, contractual attire requirements, and the bouncers’ integration into the pub’s working team did not change the position; these were consistent with a standard commercial arrangement for the engagement of a specialist contractor. Nor was this case akin to Hawley: Wetherspoon’s periodic liaison with the head doorman fell well short of a “substantial transfer” of control and responsibility.

Comment

Burger provides important clarification on the application of the vicarious liability test where the tortfeasor is an employee of a contractor. It is, in some senses, a return to orthodoxy; a handbrake on the significant expansion of the vicarious liability doctrine in recent times. Practitioners whose clients engage security, cleaning or similar contract staff may take some comfort from this decision: a properly drawn contract, reserving management and control of personnel to the contractor, should protect defendants from vicarious liability for the contractor’s staff, subject only to the Hawleyexception where operational control is substantially transferred in practice.

Image ©iStockphoto.com/nazdravie