Stephanus Bernardus Burger v Risk Solutions BG Limited & Anor

At the beginning of this century, it was well-established that an employer was vicariously liable if an employee committed a tort in the course of his employment. In contrast, it was considered “trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work”: D&F Estates Ltd v Church Commissioners for England [1989] AC 177, at 208, per Lord Bridge. The position as regards independent contractors reflected the decision of Parke B in Quarman v Burnett (1840) 6 M&W 499, where this was said at 509-510:

“But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist: and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable; and to make such person liable, recourse must be had to a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Eyre says in the case of Bush v. Steinman (1 Bos. & P. 404), and cannot be maintained to its full extent, without overturning some decisions, and producing consequences which would, as Lord Tenterden observes, ‘shock the common sense of all men:’ not merely would the hirer of a post-chaise, hackney-coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles if they had the management of them, or their servants if they were managed by servants, but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness, whilst passing along the street.”

The Courts have grappled with when a person will be an independent contractor rather than an employee in a variety of contexts, including tax and employment law as well as vicarious liability. In Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374, which concerned the Employees Compensation Ordinance (Hong Kong) 1988, the Privy Council said at 382 that the matter had “never been better put” than by Cooke J in the following passage from Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, at 184-185:

“the fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that question is ‘yes,’ then the contract is a contract for services. If the answer is ‘no,’ then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

More recently, in E v English Province of Our Lady of Charity [2012] EWCA Civ 938, [2013] QB 722 (“E’s case”), a vicarious liability case, Ward LJ encapsulated the distinction between an employee and an independent contractor in these words at paragraph 70:

“To distil it to a single sentence I would say that an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss.”

There were, however, circumstances in which someone other than the person with whom a tortfeasor had a contract of employment (the “general employer”) could become vicariously liable as a “temporary employer”. Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18, [2006] PIQR P17 (“Hawley”) provides an illustration. There, Luminar, a club operator, contracted with ASE for the provision of security services at one of its clubs. In pursuance of that contract, ASE provided a doorman, Mr Warren, who committed an assault on the claimant while working at the club. The trial judge found that Luminar was to be deemed to be Mr Warren’s “temporary employer” and the Court of Appeal concluded that he had been entitled so to find. The result was that Luminar was vicariously liable and, notwithstanding the possibility of dual vicarious liability having been recognised in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510, ASE was not. Hallett LJ, giving the judgment of the Court, said in paragraph 83 that “it would not be appropriate to attribute vicarious liability to both ASE and Luminar” as there had been “effectively and substantially a transfer of control and responsibility from ASE to Luminar”. Hallett LJ explained:

“84.

On the facts of the present case, the answer to the question ‘who was entitled and therefore obliged to control Mr Warren’s act so as to prevent it?’, on the judge’s findings, is Luminar. ASE had no immediate or effective control over the activities of Mr Warren. Any general duty of control which the head doorman had to exercise over the other doormen was very much subject to Luminar’s de facto control. If anyone was going to prevent Mr Warren’s behaving badly and this particular act, it was Luminar’s manager. ASE’s sole role seems to have been employing Mr Warren in the first place, providing him as a doorman at the club and paying his wages for as long as Luminar were happy to use his services. If relevant to this question, any training seems to have been left for the most part to others.

85.

Mr Warren may have been paid by ASE and could have been dismissed by them but in all other respects he and his head doorman answered to Luminar for their activities at the club, including the sort of behaviour that led to the damage. ASE’s only right, as the judge found, was to nominate who would turn up on any particular day for duty. But even then they could not send just anyone. Luminar had the last word.”

Earlier in her judgment, Hallett LJ had said:

“76.

The Luminar manager was in overall charge of security. She had much more than a merely supervisory role as far as the ASE employees were concerned. She was in charge of them too. She treated all those employed at the club the same; house employees and ASE employees were all part of her team. All the doormen including the head doorman took their orders from her. When she said jump, they jumped. The head doorman seems to have done virtually nothing without her instructions. His role seems to have been minimal in practice.

77.

Luminar management decided which customers to admit, which to exclude and which to reject. They told the doormen where to stand and when to move. The fact that on this occasion [the manager] did not get a chance to authorise their involvement outside the club does not detract from the fact that she was in charge of what they did. When the doormen stepped in they knew that they took their authority to act from her. It was Luminar who instructed the doorman not to use force unless absolutely necessary and to use as little force as possible ….

78.

… The learned judge found: ‘Luminar management exercised detailed control not only over what the door stewards did but how they were to do it.’ To put it at its lowest, that was a finding which, in our clear view, he was entitled to make.

79.

Thus, the fact that Luminar did not involve themselves in the detail of, or training in, methods of restraint, does not mean that the judge was wrong to find that effective control of the doormen had vested in Luminar. Luminar had control of and responsibility for ASE’s employees in fact and by virtue of the contractual provisions. One cannot ignore the contractual provisions as Mr Sweeting appeared to suggest. They are plainly relevant. The fact that by insisting on the ‘control provisions’ being incorporated into the contract Luminar was complying with their obligations to others cannot, in our view, and in the judge’s view, detract from the reality of the situation.

80.

Further, it appears to us that there can be no doubt that any customer, passer by or police officer seeing the doormen decked out in Luminar uniforms would have assumed they were Luminar staff. In effect this is what they were held out to be. The doormen were not recognisable physically as the employees of ASE. For over two years any regular visitor would have seen Warren dressed in Luminar’s uniform working at the club answering to Luminar management on the detail of his job. It was his sole or certainly primary place of employment for that entire period.”

By the time Various Claimants v Catholic Welfare Society [2012] UKSC 56, [2013] 2 AC 1 (“Christian Brothers”) reached the Supreme Court, the law relating to vicarious liability was “on the move”, as Lord Phillips (with whom Baroness Hale and Lords Kerr, Wilson and Carnwath agreed) noted in paragraph 19. The case concerned a Roman Catholic boys residential school. Diocesan bodies (“the Middlesborough defendants”) responsible for the management of the school left it to an institute known as the Brothers of the Christian Schools (“the institute”), a lay Roman Catholic order whose members lived a communal life together as brothers, to nominate a brother to act as headmaster and appoint other brothers to teach there. The Middlesborough defendants were held vicariously liable for abuse of boys at the school which the brothers were alleged to have committed. The Supreme Court concluded that the institute was also so liable.

Lord Phillips explained that the question whether there is vicarious liability for a tort is to be determined by a two-stage test. The first stage requires consideration of the relationship between the tortfeasor and the person said to have vicarious liability and the second focuses on how that relationship is linked to the tort.

Embarking on a discussion of stage 1, Lord Phillips observed in paragraph 34 that the “policy objective underlying vicarious liability is to ensure, in so far as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim”. He went on to explain that “[i]t is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability”. The “policy reasons are not the same as the criteria”, Lord Phillips said, but “[o]ne cannot … consider the one without the other and the two sometimes overlap”.

In paragraph 35, Lord Phillips referred to an employer’s vicarious liability for a tort committed by an employee in the course of his employment and went on:

“There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

Lord Phillips said in paragraph 47 that he had identified in paragraph 35 “those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant”. “Where”, Lord Phillips continued, “the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is akin to that between an employer and an employee”.

Lord Phillips concluded in paragraph 60 that the relationship between the teaching brothers and the institute was “sufficiently akin to that of employer and employees to satisfy stage 1 of the test of vicarious liability”. He had said in preceding paragraphs:

“56 In the context of vicarious liability the relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial [i.e. the person heading one of the ‘provinces’ into which the institute was divided] directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute’s rules.

57 The relationship between the teacher brothers and the institute differed from that of the relationship between employer and employee in that: (i) The brothers were bound to the institute not by contract, but by their vows. (ii) Far from the institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the institute. The institute catered for their needs from these funds.

58 Neither of these differences is material. Indeed they rendered the relationship between the brothers and the institute closer than that of an employer and its employees.”

A little less than a year after the decision in Christian Brothers, the Supreme Court gave judgment in Woodland v Swimming Teachers Association [2013] UKSC 66, [2014] AC 537 (“Woodland”). The focus of that case was on non-delegable duties of care rather than vicarious liability. In the course, however, of his judgment, Lord Sumption, with whom Lords Clarke, Wilson and Toulson agreed, said in paragraph 3:

“The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case.”

In subsequent years, the Supreme Court has returned to the subject of vicarious liability on multiple occasions, notably in Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660 (“Cox”), Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355 (“Armes”), Various Claimants v Barclays Bank plc [2020] UKSC 13, [2020] AC 973 (“Barclays”), BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2023] UKSC 15, [2024] AC 567 (“BXB”) and X v Lord Advocate [2025] UKSC 44, [2026] 2 WLR 43. In the earliest of these, Cox, the prison service was held to be vicariously liable when a prisoner working in a prison kitchen negligently dropped a heavy bag of rice on a member of the prison staff. In the course of his analysis of the law, Lord Reed, with whom Lord Neuberger, Baroness Hale, Lord Dyson MR and Lord Toulson agreed, commented in paragraph 24 that the approach developed in Christian Brothers meant that:

“a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question”.

The approach, Lord Reed noted in paragraph 29, “is not confined to some special category of cases, such as the sexual abuse of children” but “is intended to provide a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside relationships of employment”. Thus:

“By focusing upon the business activities carried on by the defendant and their attendant risks, it directs attention to the issues which are likely to be relevant in the context of modern workplaces, where workers may in reality be part of the workforce of an organisation without having a contract of employment with it, and also reflects prevailing ideas about the responsibility of businesses for the risks which are created by their activities. It results in an extension of the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasor’s activities are entirely attributable to the conduct of a recognisably independent business of his own or of a third party. An important consequence of that extension is to enable the law to maintain previous levels of protection for the victims of torts, notwithstanding changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors which have nothing to do with the nature of the enterprises’ activities or the attendant risks.”

Earlier in his judgment, in paragraph 20, Lord Reed had observed that the five “incidents” which Lord Phillips had mentioned in Christian Brothers at paragraph 35 are not all equally significant. Lord Reed said of the first (the likelihood of an employer having means and insurance) that it “is unlikely to be of independent significance in most cases”. With regard to the fifth (control), Lord Reed said in paragraph 21:

“the significance of control is that the defendant can direct what the tortfeasor does, not how he does it. So understood, it is a factor which is unlikely to be of independent significance in most cases. On the other hand, the absence of even that vestigial degree of control would be liable to negative the imposition of vicarious liability.”

What was at issue in Armes was whether a local authority was vicariously liable for abuse which the claimant had suffered at the hands of foster parents with whom it had placed her when she was a child. The Supreme Court held by a majority (Lord Hughes dissenting) that it was. In the course of his judgment, Lord Reed, with whom Baroness Hale and Lords Kerr and Clarke agreed, made the point at paragraph 59 that the foster parents “cannot be regarded as carrying on a business of their own”. The position was rather that the foster parents “provided care to the child as an integral part of the local authority’s organisation of its child care services”: see paragraph 60.

In Barclays, the question was whether the defendant bank was vicariously liable for sexual assaults on the claimants which were alleged to have been committed in the course of pre-employment medical examinations by a doctor (Dr Bates) with whom the bank had arranged the appointments. The examinations took place at the doctor’s house, he was paid a fee for each report, and the examinations formed a relatively minor part of his portfolio practice.

The Court of Appeal ruled in favour of the claimants. In the Supreme Court, it was argued on behalf of the bank that there was no need to consider the five factors identified by Lord Phillips in Christian Brothers at paragraph 35 since Dr Bates was “an independent contractor carrying on a business of his own”: see page 975. In contrast, it was contended on behalf of the claimants that “the label ‘independent contractor’ is not a useful categorisation for the purposes of determining whether the [bank] was vicariously liable for the actions of Dr Bates”, both the labour market and the law on vicarious liability having undergone a “dramatic transformation”: see page 978.

Baroness Hale, with whom Lords Reed, Hodge, Kerr and Lloyd-Jones agreed, said in paragraph 16 that there appeared to have been “a tendency to elide the policy reasons for the doctrine of the employer’s liability for the acts of his employee, set out in para 35 of Christian Brothers … , with the principles which should guide the development of that liability into relationships which are not employment but which are sufficiently akin to employment to make it fair and just to impose such liability”. She noted in paragraph 13 that in E’s case Ward LJ “did not question the traditional distinction between an employee and an independent contractor”; observed in paragraph 19 that in Woodland Lord Sumption “not only saw the Christian Brothers case as adopting the sufficiently analogous to employment test but also as casting no doubt on the conventional distinction between employees, and those analogous to employees, and independent contractors”; mentioned in paragraph 21 that in Cox Lord Reed had “repeated the distinction between integrated activities and activities entirely attributable to the conduct of a recognisably independent business of the tortfeasor or some other person”; expressed the view in paragraph 24 that there was “nothing … in the trilogy of Supreme Court cases discussed above [i.e. Christian Brothers, Cox and Armes] to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded”; and added in the same paragraph that “[t]wo cases decided by common law courts since Christian Brothers and Cox [i.e. Kafagi v JBW Group Ltd [2018] EWCA Civ 1157 and Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074] have reached the same conclusion”.

Baroness Hale concluded in paragraph 27:

“The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five ‘incidents’ identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer’s business. But the key, as it was in Christian Brothers … and Armes … , will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”

On the facts, it was held that the bank was not vicariously liable for any wrongdoing by the doctor. Baroness Hale explained in paragraph 28:

“Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the bank. The bank made the arrangements for the examinations and sent him the forms to which it wanted answers. But the same would be true of many other people who did work for the bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the bank.”

In BXB, the claimant, who was a member of a Jehovah’s Witness congregation, had been raped by an elder, one of the spiritual leaders of the congregation, at the home of the elder after the elder, the claimant and her husband had taken part together in “auxiliary pioneering” (door-to-door evangelising). The Supreme Court considered the relationship between the elder and the Jehovah’s Witness organisation to have been akin to employment, but that, at stage 2, the “close connection” test was not satisfied. Vicarious liability was not, therefore, established.

Lord Burrows, with whom Lords Reed, Hodge, Briggs and Stephens agreed, sought to summarise the legal principles applicable to vicarious liability in paragraph 58. As regards stage 1, he said in paragraph 58(ii):

“The test at stage 1 is whether the relationship between the defendant and the tortfeasor was one of employment or akin to employment. In most cases, there will be no difficulty in applying this test because one is dealing with an employer-employee relationship. But in applying the ‘akin to employment’ aspect of this test, a court needs to consider carefully features of the relationship that are similar to, or different from, a contract of employment. Depending on the facts, relevant features to consider may include: whether the work is being paid for in money or in kind, how integral to the organisation is the work carried out by the tortfeasor, the extent of the defendant’s control over the tortfeasor in carrying out the work, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, what the situation is with regard to appointment and termination, and whether there is a hierarchy of seniority into which the relevant role fits. It is important to recognise, as made clear in Barclays Bank, that the ‘akin to employment’ expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant.”

Explaining why the relationship between the elder and the Jehovah’s Witness organisation was akin to employment, Lord Burrows said in paragraph 66:

“The important features here rendering the relationship akin to employment were as follows: that as an elder Mark Sewell was carrying out work on behalf of, and assigned to him by, the Jehovah’s Witness organisation; that he was performing duties which were in furtherance of, and integral to, the aims and objectives of the Jehovah’s Witness organisation; that there was an appointments process to be made an elder and a process by which a person could be removed as an elder; and that there was a hierarchical structure into which the role of an elder fitted.”

In X v Lord Advocate, the Supreme Court held that the Crown was not vicariously liable for the conduct of a member of the Scottish judiciary. Lords Reed and Burrows, with whom Lords Hodge and Briggs and Lady Simler agreed, said in paragraph 21 that the modern law as regards vicarious liability was set out in BXB and concluded that the relationship between a Sheriff and the Scottish Government is not akin to employment since “there is no control by the Scottish Government over the performance by sheriffs of their judicial functions” and “it is a constitutional principle, resting on the separation of powers, that the judiciary is independent of government”: see paragraphs 58-60. Lords Reed and Burrows had “put to one side liability for independent contractors”, no one having suggested that judges are such: see paragraph 52.

Ng Huat Seng v Munib Mohammed Madni [2017] 2 SLR 1074 (“Ng Huat Seng”), the decision of the Singapore Court of Appeal to which Baroness Hale referred in Barclays, is also noteworthy. In that case, Sundaresh Menon CJ said in paragraph 63 that the “essential contribution” of Christian Brothers and Cox was “to fine-tune the existing framework underlying the doctrine so as to accommodate the more diverse range of relationships which might be encountered in today’s context”, adding that such relationships, “when whittled down to their essence, possess the same fundamental qualities as those which inhere in employer-employee relationships, and thus make it appropriate for vicarious liability to be imposed”. In contrast, the Court could “not see how vicarious liability, the normative foundation of which rests on the theory that it is fair, just and reasonable to hold a defendant liable for the acts of the tortfeasor on the ground that the tortfeasor is in fact engaged in the defendant’s enterprise, could possibly be extended to tortious acts committed by an independent contractor, who, by definition, is engaged in his own enterprise”.

The Recorder explained in paragraphs 77 and 78 of his judgment that he was deciding whether JDW was vicariously liable “by applying the test in BXB” and that “the question is, therefore, whether the relationship between the doorman and [JDW] was one akin to employment, applying the test as now set out by Lord Burrows in BXB”. The Recorder said in paragraph 80 that the terms of the Contract were an “important feature” but that they were “merely one of a number of features that the court must take into consideration”. Addressing “the factors as set out by Lord Burrows in BXB”, the Recorder said:

The Recorder noted in paragraph 100 that “the akin to employment expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant”, but he considered it “clear on the facts of this particular case that the first defendant [i.e. Risk Solutions] was not carrying on its true independent business in the sense set out by Lord Burrows in BXB”.

The Recorder concluded in paragraph 101 that “the first stage, namely the akin to employment aspect of the test, is satisfied” and, in paragraph 105, that JDW was “vicariously liable for the actions of the door staff of [Risk Solutions]”.

Sweeting J considered that, at stage 1 of the analysis, the Court must “first … determine whether the relationship is genuinely one with a ‘true independent contractor’ carrying on their own business”: see paragraph 73 of the judgment. “If it is”, Sweeting J said in paragraph 73, “vicarious liability does not arise, and the analysis of factors for relationships ‘akin to employment’ becomes unnecessary”.

Sweeting J continued:

“74.

Whilst Hawley demonstrates how significant (and near exclusive) control can lead to a finding that a relationship with staff provided by another business is ‘akin to employment’, the framework for this analysis has been refined. The core question in the present case, informed by Barclays Bank and BXB, is whether the contractual and working reality of the relationship between Wetherspoons and the security staff engaged via contractors points to a relationship ‘akin to employment’ or to that of a ‘true independent contractor’ carrying on their own business. This involves considering the various features listed in BXB if the relationship is not clearly one or the other, rather than focusing predominantly on control as was the emphasis in Hawley.

75.

I accept [JDW’s] submission that the Recorder erred in his approach. The starting point must be the contractual relationship between JDW and Risk Solutions, which was for the provision of security services by an independent third party. The factors relied upon by the Recorder, while indicative of some interaction and control between JDW and the door staff, are, in my judgment, entirely consistent with a business engaging a specialist independent contractor to perform services on its premises for pragmatic commercial reasons.”

Elsewhere in his judgment, Sweeting J made the following comments:

Ms Leigh-Ann Mulcahy KC, who appeared for Mr Burger with Ms Lia Moses, contended that Sweeting J was not entitled to interfere with the Recorder’s decision. Ms Mulcahy said that the relationship which needs to be considered at stage 1 is that between the door supervisors and JDW, not that between Risk Solutions and JDW. She argued, moreover, that Sweeting J was wrong to consider that analysis of the features of the relevant relationship does “not arise” unless the terms of the contract in question show that the relationship is “not clearly” one involving an independent contractor or one that is “akin to employment”. All the features of the relationship must be considered and the Contract, while of relevance, was no more than one such feature. The relationship needed to be assessed on the basis of the effective position or reality in practice and not only, or even predominantly, by reference to the contractual terms. Sweeting J, Ms Mulcahy submitted, appears to have mistakenly elided the policy reasons that make it fair, just and reasonable to impose vicarious liability with the criteria for deciding whether the relationship was “akin to employment” now to be found in paragraph 58(ii) of Lord Burrows’ judgment in BXB. Further, having regard to the guidance given in cases such as In re Sprintroom [2019] EWCA Civ 932, [2019] 2 BCLC 617 and Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48, it was not open to Sweeting J to go behind either the Recorder’s findings of fact or his evaluative assessments.

In contrast, Lord Faulks KC, who appeared for JDW with Mr Johnathan Payne, supported Sweeting J’s decision. Barclays and BXB have confirmed that vicarious liability does not arise in relation to independent contractors and, so Lord Faulks argued, Risk Solutions was clearly one. In doubtful cases, the five “incidents” identified by Lord Phillips in Christian Brothers might be helpful in identifying a relationship sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability, but the present is simply a case of an independent contractor carrying on business on its own account. There are three categories of note: (a) employees, (b) those who are analogous to employees and (c) independent contractors. Here, so Lord Faulks submitted, it is obvious that Risk Solutions fell into category (c). Sweeting J was right to take the contractual position as the starting point and right, too, that the matters on which the Recorder relied were in fact consistent with the engagement of an independent contractor.

As Lord Burrows noted in BXB, at paragraph 50, Baroness Hale “made clear that the expansion of vicarious liability to include, at the first stage, whether the relationship was ‘akin to employment’ did not extend to rendering an employer vicariously liable for the torts of ‘true independent contractors’”. Baroness Hale did not accept that the “trite proposition” that “the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work” had been “replaced with a more nuanced multi-factorial approach in which a range of incidents are considered in deciding whether it is ‘fair, just and reasonable’ to impose vicarious liability”: see paragraphs 7-8 of Barclays.

Echoing Baroness Hale, Lord Burrows said in the last sentence of paragraph 58(ii) of his judgment in BXB that it is “important to recognise … that the ‘akin to employment’ expansion does not undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant”. Earlier in paragraph 58(ii), Lord Burrows had said that when deciding whether the relationship between the tortfeasor and the defendant was “akin to employment”:

“relevant features to consider may include: whether the work is being paid for in money or in kind, how integral to the organisation is the work carried out by the tortfeasor, the extent of the defendant’s control over the tortfeasor in carrying out the work, whether the work is being carried out for the defendant’s benefit or in furtherance of the aims of the organisation, what the situation is with regard to appointment and termination, and whether there is a hierarchy of seniority into which the relevant role fits”.

One question which arises in this context is how the last sentence of Lord Burrows’ paragraph 58(ii) relates to the potentially relevant “features” listed in the same sub-paragraph. Lord Faulks suggested that the final sentence operated as a proviso. Ms Mulcahy, on the other hand, argued that the list is to be used to determine whether a person had a relationship “akin to employment”, on the one hand, or was an independent contractor, on the other. She added, though, that Lord Burrows was not purporting to provide a comprehensive list of matters that could be material but rather said that the relevant features may “include” those identified.

Lord Burrows himself referred in BXB to the “long-standing distinction … between employees and independent contractors” remaining of crucial importance: see paragraph 50. In Barclays, Baroness Hale spoke of the “traditional distinction” (paragraph 13), the “conventional distinction” (paragraphs 19 and 25) and the “classic distinction” (paragraphs 22 and 24). As I see it, therefore, she was envisaging that a person who would have been regarded as an independent contractor on previously established principles would continue to be so viewed.

As for those principles, in Market Investigations, at 184, Cooke J said that the “fundamental test” was whether the person in question was performing the services “as a person in business on his own account”.In E’s case, at paragraph 70, Ward LJ identified the “independent contractor” as someone who “works in and for his own business at his risk of profit or loss”. In Barclays, at paragraph 13, Baroness Hale quoted that part of Ward LJ’s judgment with apparent approval. She also, at paragraphs 21 and 26, cited passages from Cox and Ng Huat Seng in which Lord Reed and Sundaresh Menon CJ respectively made reference to “a recognisably independent business of the tortfeasor or some other person” and an independent contractor being “engaged in his own enterprise”. Further, Baroness Hale concluded in paragraph 27 that it is not necessary to consider the “five incidents” where it is clear that the tortfeasor “is carrying on his own independent business”.

In Barclays itself, Baroness Hale attached significance to such matters as Dr Bates’ “free[dom] to refuse an offered examination should he wish to do so”, the fact that he had insurance and his “portfolio of patients and clients” when explaining in paragraph 28 why he was an independent contractor. Market Investigations and E’s case indicate that exposure to “risk of profit or loss” and whether the person in question “provides his own equipment” and “hires his own helpers” are material, too.

It may not matter whether the last sentence of paragraph 58(ii) of Lord Burrows’s judgment in BXB is seen as a proviso or, alternatively, it is recognised that the list of “features” is not comprehensive. What is important, I think, is that other matters may well be of significance (and sometimes of greater significance) when evaluating whether a person was an independent contractor. The “features” identified in paragraph 58(ii) may be relevant, but so may others. Lord Burrows’ list does not capture by any means all of the factors that can bear on whether a person is “carrying on his own independent business” and so an independent contractor.

Ms Mulcahy argued that the Court always needs to consider all the features of a relationship when determining whether it was “akin to employment” or involved an independent contractor. As, however, I have mentioned, Baroness Hale said in Barclays that it is not necessary to consider Lord Phillips’ “five incidents” if it is clear that a tortfeasor is carrying on his own independent business. There may similarly be no need to address the paragraph 58(ii) “features”. If there is nothing to indicate a substantial divergence between the contractual position and the reality, it may suffice to look to the terms of the contract with the tortfeasor. It will sometimes be clear from those that the person is an independent contractor.

Barclays apart, Christian Brothers and the Supreme Court cases which have succeeded it have not been concerned with tortfeasors who were arguably independent contractors but rather with individuals who, while not employees, had a relationship with the defendant having some similarity to employment. Lord Burrows’ list of “features” is apt for such a situation. It cannot, however, be taken to be the last word when the question is whether a tortfeasor was an independent contractor.

In the present case, the Recorder said in paragraph 100 of his judgment that it was “clear … that [Risk Solutions] was not carrying on its true own independent business in the sense set out by Lord Burrows in BXB”. Ms Mulcahy suggested that this was a slip in an extempore judgment and that the Recorder had in fact had the door supervisors in mind. Whether or not that is correct, it is plain, I think, that Risk Solutions was an independent contractor. Lord Faulks suggested that Risk Solutions provided door supervisors for a range of pubs, not just pubs operated by JDW. Ms Mulcahy questioned whether there was evidence to that effect, but she did not argue that there was anything to gainsay what the Contract indicates, which is that Risk Solutions was an independent contractor. The Contract is entirely consistent with Risk Solutions carrying on a business of its own with the attendant prospects of profit and loss and freedom to supply its services to other clients. It can make no difference that Risk Solutions was paid for its services, that those services were carried out for JDW’s benefit, or that the services were important to JDW.

This, therefore, is a case in which the tort was committed by employees of an independent contractor. What principles apply in such a situation?

Clerk & Lindsell on Torts, 24^th ed., states in paragraph 6-67 that “[i]f the employer has employed an independent contractor to do work for him, the rule is that the employer is not responsible for any tort committed by that contractor in the course of the execution of the work” and, in paragraph 6-67, that “[t]he employees of a contractor, whilst acting as such, stand in the same position as their employer”. Passages in the Supreme Court authorities point in the same direction. In Cox, Lord Reed referred in both paragraph 24 and paragraph 29 to activities of a tortfeasor which were “entirely attributable to the conduct of a recognisably independent business of his own or of a third party” (emphasis added). In Barclays, Baroness Hale not only cited these passages, but italicised the words “rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party”: see paragraphs 20 and 21.

Consistently with these various comments, Lord Faulks argued that, where a tort has been committed by an employee of an independent contractor, the person who engaged the independent contractor will not normally have vicarious liability. Where, he contended, an independent contractor was performing its contract through the individual who committed the tort, the independent contractor may be vicariously liable but the party with whom that contractor contracted will not be generally. The position might be different, he suggested, in the case of an artificial arrangement under which the tortfeasor had been an employee of the defendant in all but name, but he maintained that the point did not arise in the present case.

As I have mentioned, Ms Mulcahy submitted that the focus must be on the relationship between the tortfeasor and the defendant. That, she pointed out, is in keeping with, for example, Lord Burrows’ reference in paragraph 58(ii) of BXB to the test at stage 1 being whether “the relationship between the defendant and the tortfeasor was one of employment or akin to employment” (emphasis added). As it seems to me, however, the relationship between the defendant and the tortfeasor’s employer will be of central importance where the tortfeasor was employed by an independent contractor. I agree with Lord Faulks that the defendant will not usually be vicariously liable in such a case.

For the defendant to escape vicarious liability on this basis, the tortfeasor must, however, have been working for “a recognisably independent business … of a third party” (to use the words of Lord Reed). The tortfeasor’s employer has to have been a “true independent contractor” (to quote Baroness Hale and Lord Burrows, with emphasis added).

It seems to me that a defendant will also be vicariously liable for a tort committed by an employee of an independent contractor in circumstances such as those in Hawley where there had been “effectively and substantially a transfer of control and responsibility” to the defendant. In the present case, the particulars of claim included an allegation that JDW became the “temporary deemed employer” of the door supervisors “in accordance with the principles established in Mersey Docks Harbour Board v Coggins and Griffith [1947] AC 1 and applied in the factually similar case of Hawley v Luminar Leisure Ltd”. In the event, however, the Recorder did not decide the case on this basis and Mr Burger did not pursue the point in the appeal to this Court. The Recorder explained in paragraph 77 of his judgment that Mr Burger had placed reliance on Hawley, but that he (the Recorder) “prefer[red] to decide this case … by applying the test in BXB”.

In any case, the facts found by the Recorder would not have sustained the conclusion that JDW was to be regarded as the door supervisors’ “temporary deemed employer”. I agree with Sweeting J’s comment in paragraph 71 of his judgment that, “[w]hile Hawley is factually similar in that it involved a doorman provided by a contractor, the degree to which the door supervisors on duty in that case were subordinated to the active management of the nightclub’s senior management was considerably greater than the position in the present case”.

With regard to the specific conclusions at which the Recorder arrived when addressing the factors set out in paragraph 58(ii) of BXB:

I have set out in paragraphs 17 and 18 above some of the facts found in Hawley. They were very different from the Recorder’s findings in the present case.

In short, it seems to me that the approach adopted by the Recorder was erroneous. He ought to have considered at the outset whether Risk Solutions was an independent contractor; to have found that it was; and, that being so, further to have concluded that the circumstances were not such as to make JDW vicariously liable for torts committed by employees of Risk Solutions through whom the latter was performing its obligations under its engagement with JDW.

I would dismiss the appeal.