By David Sandiford

On 5 August 2018 Mr Burger was restrained by two door supervisors outside a pub operated by Wetherspoons with such force that he suffered a dislocated hip, requiring emergency surgery and a three-night hospital stay. The door supervisors were employees of Risk Solutions who were engaged by JDW to provide door security at the pub on three nights of the week, pursuant to a Security Services Agreement.

It was an unprovoked and appalling attack, occurring whilst the Claimant was walking away from the pub entrance. One of the door supervisors deliberately jumped into Mr Burger’s back with his knee, and then he and another door supervisor exerted disproportionate force upon Mr Burger, causing his hip to dislocate.

The claim proceeded against Wetherspoons alone. The Claimant won at first instance, the Recorder holding that JDW was vicariously liable for the actions of the security personnel.

Sweeting J heard the appeal in March this year.

Wetherspoons challenged to the imposition of vicarious liability where the contract was with an independent contractor (Ground 1), the weight given to elements of control rather than the contract (Ground 2), the failure to evaluate commercial reality and enterprise risk (Ground 3), the finding that Stage 2 of the vicarious liability test was satisfied (Ground 4) and the failure to consider relevant binding legal authority other than Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15 (“BXB”) (Ground 5).

Sweeting J was satisfied that the wrongful conduct of the door security staff was sufficiently closely connected with their authorised activities to impose vicarious liability on their employer. The assault was not an isolated act disconnected from their role, but rather an excessive and wrongful mode of performing, or purporting to perform, their duties related to managing entry and maintaining order.  However, the trial judge had been wrong to find that:

(i)                  Wetherspoons were vicariously liable on the basis that the relationship between it and Risk Solutions (and/or the door staff) was “akin to employment” and that the tortious conduct occurred in the course of this quasi-employment; and

(ii)                Risk Solutions was not carrying on its “true own independent business” in the sense set out by Lord Burrows in BXB, taking into account the totality of the evidence and weighing the factors identified in BXB and more.

The evidence, viewed in light of the established legal principles concerning independent contractors, did not support a finding that the relationship was akin to employment. The factors relied upon by the Recorder were features of a standard commercial arrangement for the provision of specialist services by an independent contractor & that would also be fatal to any attempt to analyse the relationship as giving rise to dual vicarious liability or temporary deemed or transferred employment.

 David Sandiford is a barrister at Exchange Chambers.