Vicarious liability: Pub operator not vicariously liable for assault by security contractor’s employees

Authors: Stephen Miller, Heidi Watson, Corinna Harris, Sophie Jackson and Charlotte Stern

The Court of Appeal has confirmed that a business will not usually be vicariously liable for torts (delicts in Scotland) committed by employees of a genuinely independent contractor.

Mr Burger was restrained by door supervisors outside a JD Wetherspoon pub and suffered a dislocated hip. The door supervisors were employed by Risk Solutions, an independent security contractor engaged by JDW to provide security services at the pub. The question arose about who was liable for the injury.

The County Court found JDW vicariously liable, but the High Court overturned that decision and the Court of Appeal agreed. The key point was that Risk Solutions was carrying on its own independent business: it employed and managed the door supervisors, provided their uniforms, determined staffing, retained responsibility for direction and control, and was contractually responsible for the security services.

The Court of Appeal said that rather than asking whether the relationship was “akin to employment”, the question was whether the contractor was a true independent contractor. In this case, as evidenced by the fact that Wetherspoons did not pay the staff directly and Risk Solutions provided training and uniforms, there was ultimately no substantial transfer of control and responsibility from Risk Solutions to JDW.

Key Action Points for Human Resources and In-house Counsel

This case highlights how beneficial it is to have a clearly defined contract, which also reflects the day-to-day realities of how that contract is run:

• Contracts should define the contractor’s responsibility for recruitment, training, supervision, discipline, staffing levels, uniform/PPE, insurance, and appropriate indemnities; and
• End users like JDW should avoid managing contractor staff as if they are employees and should ensure instructions are given to the contractor, not directly to its staff, and periodically check that the arrangements on the ground match the contract.

Burger v Risk Solutions BG Limited, J D Wetherspoon Plc