Stephanus Bernardus Burger v Risk Solutions BG Limited & Anor

At stage 1 of the vicarious liability analysis, the court must preserve the distinction between employment or relationships akin to employment and a true independent contractor.

Where a tort is committed by an employee of a true independent contractor, the engaging defendant is normally not vicariously liable. Liability may arise where control and responsibility have been effectively and substantially transferred to that defendant.

The factors listed in BXB are relevant but not exhaustive when deciding whether a business is genuinely independent. Matters such as profit or loss, the ability to serve other clients, insurance, equipment and helpers may be significant. If contractual terms substantially reflect reality, they may be sufficient to establish independent contractor status.

Door supervisors employed by Risk Solutions BG Limited assaulted Mr Burger outside a pub operated by J D Wetherspoon plc. The first-instance court held JDW vicariously liable and awarded damages of £69,775.50. Risk Solutions had entered liquidation and had been dissolved.

Sweeting J allowed JDW’s appeal, holding that it was not vicariously liable: [2025] EWHC 1259 (KB). Mr Burger appealed to the Court of Appeal. The central questions were whether Risk Solutions was a true independent contractor, whether the relationship between JDW and the door supervisors was akin to employment, and whether control and responsibility had been transferred to JDW so as to make it a temporary employer.

The appeal was dismissed. Newey LJ gave the leading judgment. Baker LJ agreed. Bean LJ agreed with Newey LJ’s reasons, while expressing regret about the practical consequence that Mr Burger was left without compensation.

1. Stage 1 of the vicarious liability test requires the court to distinguish employment or relationships akin to employment from a true independent contractor. The expansion of vicarious liability recognised in Various Claimants v Catholic Welfare Society [2012] UKSC 56 and later authorities did not abolish the traditional independent contractor exclusion, as confirmed in Various Claimants v Barclays Bank plc [2020] UKSC 13 and BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15.
2. The features identified in BXB are relevant where the relationship is potentially akin to employment, but they are not exhaustive when the issue is whether the contractor is carrying on an independent business. The court may consider the contractor’s exposure to profit or loss, ability to serve other clients, insurance, equipment, helpers, and the relationship between contractual terms and working reality.
3. Where the tortfeasor is employed by an independent contractor, the relationship between the defendant and that contractor is of central importance. The defendant is normally not vicariously liable. An exception may arise where there has been an effective and substantial transfer of control and responsibility, as illustrated by Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18.
4. Risk Solutions was a true independent contractor. The Contract was consistent with Risk Solutions carrying on its own business, with prospects of profit or loss and freedom to provide services to other clients. The fact that security was important to JDW, provided for JDW’s benefit, and paid for by hourly charges did not alter that conclusion.
5. The matters relied on by the Recorder, including standards of service, attire, the Trinity System, the right to request replacement, established teamwork and perceived hierarchy, did not demonstrate significant day-to-day control or a transfer of responsibility to JDW. The degree of active management in Hawley was materially greater. JDW was therefore not a temporary employer and was not vicariously liable.

1. Court of Appeal (Civil Division): Mr Burger’s appeal was dismissed.
2. High Court of Justice, King’s Bench Division: On 21 May 2025, Sweeting J allowed JDW’s appeal and held that JDW was not vicariously liable: [2025] EWHC 1259 (KB).
3. County Court at Central London: Recorder Shepherd held after trial that the door supervisors had assaulted Mr Burger and that JDW was vicariously liable. JDW was ordered to pay £69,775.50.