From JDSupra, Ian Ford and Richard McKeown discuss a recent case in England in which the Court of Appeals said that a restaurant was not liable for the acts of the door staff who were independent contractors. Ian and Richard write:
On 25 June 2026 the Court of Appeal confirmed that J D Wetherspoon Plc, the defendant, was not vicariously liable for the actions of door staff provided by a specialist independent contractor. Kennedys represented the successful defendant.
Background
In August 2018, Mr Burger, the claimant, attempted to gain entry to a J D Wetherspoon (JDW) pub. He was refused entry by the door staff, and as he walked away was subject to a vicious assault.
The door staff were provided to JDW by Risk Solutions BG Ltd (Risk Solutions). It was expressly stated in the contract that door staff remained under the control and within the employment of Risk Solutions, with the contract also providing a contractual indemnity in favour of JDW.
A claim was brought against both defendants. Risk Solutions went into administration and took no active part in the proceedings. The claim therefore proceeded against JDW.
At Central London County Court, Recorder Shepherd found in favour of the claimant. The judge considered that the performance of door security was so closely entwined with JDW’s business, that the door staff became the deemed employees of JDW. Accordingly, JDW was vicariously liable for the acts of the doorman.
The law
Vicarious liability is the liability for an employer for an employee’s wrongful act carried out during the course of their employment. Since about 2001 the law in relation to vicarious liability has developed considerably, primarily in response to the historic sexual abuse claims and the change in nature of working relationships beyond strict contracts of employment.
The courts are required to undertake a two-stage enquiry to determine vicarious liability. Stage 1 considers the relationship between the defendant and the tortfeasor; Stage 2 considers the link between the commission of the tort and that relationship. Both stages are to be satisfied if vicarious liability is to attach.
Stage 2 developed initially. In Lister v Hesley Hall Ltd [2001], the Court held that vicarious liability could apply where the act (although clearly unauthorised) was so closely connected with the employee’s employment that it would be just to hold the employer liable. Subsequent decisions refined this and the test of whether it was ‘just, fair and equitable’ to hold the party liable emerged.
As to stage 1, the law has developed beyond the constraints of an employment contract and whether the relationship was akin to employment, with the current state of the law summarised relatively recently in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023]. The factors the court will consider include: payment, how integral the work is, control and appointment / termination. Crucially this 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”.
Appeal in the High Court
JDW appealed on the basis that the trial Judge had erred in his application of the two-stage test. In particular, he had failed to give the contractual arrangements the importance deserved in determining whether Risk Solutions was a true independent contractor, placing too much reliance on the stage 2 test when the nature of that relationship was opaque.
Mr Justice Sweeting noted that Recorder Shepherd had focussed on factors such as the integral nature of the work, that JDW could stipulate the uniform to be worn, the door staff being part of an established team and viewed the contract as “merely one of a number of features”.
The judge agreed with the defendant that the starting point was the contractual relationship between JDW and Risk Solutions which provided for the provision of door staff by an independent third party.
Further, and contrary to the findings of the Recorder, it was held that the interactions between the two businesses were supportive of Risk Solutions being a true independent contractor.
What was in place was a contract for services, not of service, and the Recorder had erred in finding the relationship between the door staff and JDW as akin to employment. The interactions were simply the features of a standard commercial arrangement.
Court of Appeal
On 9 June 2026, the Court of Appeal heard the claimant’s appeal.
The claimant argued that Sweeting J had erred in his approach by misinterpreting the evidence heard by the Recorder and had been wrong to conclude that JDW did not exercise sufficient control over the door staff to be treated as their temporary employer and therefore vicariously liable for the assault.
Whilst it was accepted during the hearing that Risk Solutions was a true independent contractor, the claimant argued that notwithstanding this, it was necessary to undertake an examination of the relationship between the actual door staff who had committed the assault and JDW, and it was argued that this relationship was akin to employment.
JDW maintained its stance that a contract for service was in place and that none of the features identified by the Recorder evidenced JDW exercising control or direction over the door staff as to how they performed their duties.
Giving the leading judgment, Newey J noted that the two-stage test does not undermine the position that there is no vicarious liability where the tortfeasor is a true independent contractor. He found that Risk Solutions was an independent contractor as the contract was consistent with them carrying on a business of their own, with the attendant prospects of profit and loss and being able to provide their services to other clients.
Rejecting the claimant’s submission that it was necessary to examine the specific relationship between the defendant and the actual tortfeasors provided by the independent contractor, he confirmed that the relationship between the defendant and the tortfeasor’s employer would be of central importance. It was also confirmed that the employees of an independent contractor, whilst acting as such, stand in the same position as their employer.
For a defendant to avoid liability then the tortfeasor must have been working for a “recognisably independent business……or of a third party” and the tortfeasor’s employer must be “a true independent contractor”.
As Risk Solutions was an independent contractor, its employees were likewise independent contractors; consequently, JDW was not liable to the claimant.
Comment
Whilst the claimant was the victim of a vicious assault, the court held that this could not and does not undermine the basic doctrine that a party will not be liable for the acts committed by a true independent contractor.
Parties are entitled to manage and mitigate the risks within their business by engaging independent contractors to deal with aspects such as security. Where a contractor is operating as a genuine independent business (i.e. a true independent contractor), the party engaging them will not usually be vicariously liable for the contractor’s actions, even if the contractor’s insurance does not respond.
Arguably Bean LJ struggled with the outcome of the case indicating that whilst the appeal should be dismissed he did so with regret seemingly troubled with Mr Burger being left without recompense. Whilst one can have the utmost sympathy with Mr Burger’s predicament, it cannot be right that the outcomes of claims are determined using a moral compass only. Parties operate within the legal framework set by Parliament and the Courts, and the law has to be applied accordingly. Undoubtedly Mr Burger’s claim would have succeeded against Risk Solutions had they remained in existence or had insurance. All concerned share the frustration that Risk Solutions were not held accountable.
Source: Court of Appeal reaffirms limits of vicarious liability in landmark ruling | Kennedys – JDSupra