Still no vicarious liability for the torts of independent contractors – Burger v Risk Solutions & Wetherspoons [2026] EWCA Civ 804

Miles McCollum, second six pupil at 12KBW, analyses the latest Court of Appeal decision on independent contractors and vicarious liability.

Introduction

Cases questioning the correct approach to vicarious liability continue to come before the senior courts of England & Wales. Since the paradigm shift in Various Claimants v Catholic Welfare Society [2012] UKSC 56 (“Christian Brothers“), scarcely a year has passed without a novel employment scenario being thrown up from below, prompting further refinement to a legal framework which has proven notoriously difficult to define with any sort of generality. Burger v Risk Solutions BG Ltd & Anor [2026] EWCA Civ 804 (“Burger”) has yet again reinforced the trite law that defendants are not liable for the actions of true independent contractors and – more significantly – demarked this principle as the starting point for any analysis of the relationship between a defendant and a tortfeasor.

Facts 

On 5 August 2018, the Claimant suffered a dislocated hip at the hands of two bouncers outside a Wetherspoons pub in Guildford. The bouncers were employees of Risk Solutions, which had contracted with Wetherspoons to provide security services to the pub. Risk Solutions had since dissolved and was insolvent. Therefore, the Claimant proceeded against Wetherspoons on the basis that it was vicariously liable for the torts committed by the bouncers. At first instance, Recorder Sheffield found for the Claimant, but this was overturned on appeal by Sweeting J. He concluded that the Recorder had erred in his approach and that Wetherspoons was not vicariously liable.

Previous decisions

Newey LJ provided an overview of the changes in the law of vicarious liability since Christian Brothers, involving a string of Supreme Court judgements which will now be familiar to practitioners in this area. It concluded with the formulation of the law provided by Lord Burrows in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15 (“BXB“) at [58], which is accepted to state the law as it currently stands (see, for example X v Lord Advocate [2025] UKSC 44 and our blog post on it). This formulation provides a number of factors which will be relevant in determining whether a relationship akin to employment exists (adapted from Christian Brothers), with the caveat that there is no vicarious liability where the tortfeasor is a true independent contractor (taken from Various Claimants v Barclays Bank plc [2020] UKSC 13). In determining whether a party is an independent contractor, the fundamental question would be whether it was a “person in business on his own account“. In Barclays, a relevant factor was that the tortfeasor in question was free to refuse work. In other cases, relevant factors have been exposure to risk of profit and loss, provision of one’s own equipment and hiring one’s own helpers.

The relationship between Wetherspoons and Risk Solutions

Newey LJ based his analysis on the services contract between Wetherspoons and Risk Solutions as there was little to indicate that it was not representative of the true commercial position between the parties. It outlined the responsibilities and duties of the bouncers, and that they were to wear uniforms bearing the logo of Risk Solutions. Risk Solutions would remain responsible for the direction, management and control of all security staff, and indemnify Wetherspoons against any liability resulting from their conduct. Wetherspoons paid Risk Solutions for the supply of staff on an hourly basis. Put bluntly, the contract was entirely consistent with Risk Solutions being an independent contractor. It was free to supply its services to other clients and reap the associated profits. The fact that Risk Solutions was paid for its services, which were important to Wetherspoons’ operations, was not relevant.

The relationship between Wetherspoons and the tortfeasors

For the purposes of deciding whether vicarious liability can arise, the crucial relationship is between a tortfeasor and a defendant. However, where the tortfeasor is an employee of an independent contractor, defendants will not usually be liable unless there is a transfer of control and responsibility over the tortfeasor from the employer to the defendant (see [60] and [62]).

Whether such a transfer had taken place was subject to more traditional considerations of the commercial relationship between the parties. The Recorder had misinterpreted the facts surrounding this: though Wetherspoons was responsible for recording the hours worked by the bouncers, it did not actually pay them – Risk Solutions did; though the contract stipulated what the bouncers would wear, it stipulated Risk Solutions-branded uniforms; though the bouncers were part of the team working in the pub, it did not mean that Wetherspoons controlled them on an ongoing basis. The facts taken together were not sufficient to show that Wetherspoons had become a temporary deemed employer of the tortfeasors. For this reason, vicarious liability could not be established and the claim failed.

Comment 

This case will serve as a reminder to practitioners to seriously contemplate whether a tortfeasor is an independent contractor before considering whether a relationship akin to employment can exist at all. In circumstances where the contract indicates that the tortfeasor is himself running a business, as it did in this case and Barclays, the starting point will be that no liability can accrue to the defendant. Claimants will need to clearly show that the contract did not represent the commercial reality of the situation; only then will the court embark on an analysis of whether a relationship akin to employment was present. Where the tortfeasor is employed by an independent contractor, the position remains somewhat unclear. The claimant will have to show that the defendant exerted sufficient control over the tortfeasor to become a temporary deemed employer. But how is this question decided: with the ‘akin to employment’ test outlined in BXB, or some other, more stringent, test? If the latter, this test was not elucidated by the Court in Burger. If the former, it would appear to obviate the need to analyse the relationship between the defendant and the employer in the first place. One thing is clear: the courts will be grappling with fresh questions in this area of law for some time to come.