JD Wetherspoon Plc v Stephenus Bernadus Burger

Vicarious liability does not generally arise for the torts of a true independent contractor. The court must first examine the contractual and working reality to determine whether the tortfeasor is carrying on an independent business or has a relationship akin to employment. Only in the latter case is it necessary to weigh the relevant Stage 1 factors.

At Stage 2, the wrongful conduct must be closely connected with authorised activities. A mere “but for” causal connection is insufficient, but excessive or deliberate force may remain within the course of the work where it is an unauthorised mode of performing, or purporting to perform, assigned duties.

Mr Burger was injured when door supervisors outside a public house operated by JD Wetherspoon restrained him. The supervisors were employees of Risk Solutions BG Ltd, which had contracted with JD Wetherspoon to provide security services.

Following a trial, the Recorder held JD Wetherspoon vicariously liable and awarded damages of £71,308.67. JD Wetherspoon appealed on issues concerning vicarious liability and the assessment of future private hip-replacement costs. Permission was granted on all grounds.

The appeal required consideration of whether the relationship between JD Wetherspoon, Risk Solutions and the door supervisors was akin to employment or instead involved a true independent contractor, and whether the evidence supported the award for future private treatment.

1. Future treatment. The appeal was dismissed on the challenge to the award for future private hip-replacement surgery. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 does not remove a claimant’s entitlement to choose private treatment where it is available. The claimant bore the burden of proving prospective loss on the balance of probabilities. The Recorder was entitled to assess the claimant’s answer in cross-examination alongside the Schedule of Loss and the inherent probabilities, including the possibility that his intentions would change if damages provided the means to fund private treatment.
2. Stage 2. The close-connection test asks whether the wrongful conduct was so closely connected with acts authorised to be done that it could fairly and properly be regarded as occurring in the course of employment or quasi-employment. A mere “but for” connection is insufficient. The assault was an excessive and wrongful mode of performing, or purporting to perform, the authorised functions of managing entry and maintaining order. The Recorder was therefore entitled to find Stage 2 satisfied.
3. Stage 1. The court must first determine whether the tortfeasor is carrying on an independent business. If the relationship is clearly one with a true independent contractor, the Stage 1 factors need not be considered. If the position is doubtful, the factors identified in BXB may assist, but they must be evaluated in the context of the contractual and working reality.
4. The starting point was the Security Services Agreement, under which Risk Solutions retained responsibility for hiring, training, disciplining, supervising and controlling its employees. Requirements concerning uniform, hours, service standards, liaison with pub staff, record keeping, cooperation and the replacement of personnel were ordinary features of a commercial contract for specialist security services. They did not establish a relationship akin to employment.
5. The Recorder had therefore erred in imposing vicarious liability. The appeal was allowed on Grounds 1–3 and 5. The finding concerning future revision surgery was undisturbed.

• Central London County Court: following a trial, the Recorder held JD Wetherspoon vicariously liable and awarded damages of £71,308.67.
• High Court (King’s Bench Division): the appeal was allowed on the vicarious-liability grounds. The finding and award concerning future private revision surgery remained undisturbed.