Court of Appeal explored the process of examining vicarious liability when issues of independent contractor and arguments of ‘akin to employment’ are raised.

This claim arose from a situation in which the claimant alleged that he sustained injuries when he was restrained by door supervisors outside a pub operated by the second respondent, JD Wetherspoon Plc. The claimant alleged that the door supervisors had committed battery and that the two respondents were vicariously liable for that. The door supervisors were employed by the first respondent, Risk Solutions, who were engaged under a security services contract.

Under the contract, Risk Solutions were responsible for the direction, management and control of their staff. During the proceedings, Risk Solutions went into liquidation and the claim continued against JD Wetherspoon.

At first instance, it was found that the relationship between the door supervisors and JD Wetherspoon was one ‘akin to employment’ in line with the test in Trustees of Barry Congregation of Jehovah’s Witnesses v BXB (2023). This was appealed. It was subsequently found that the correct approach was whether the relationship was one of a genuine independent contractor. If that was the case, then the requirement to look at relationships ‘akin to employment’ did not have to be considered. As a result, it was found that Risk Solutions were an independent contractor and JD Wetherspoon was not vicariously liable.

The claimant appealed this decision to the Court of Appeal. Their judgment made clear that whilst there was an expansion of vicarious liability to situations ‘akin to employment’ that did not arise when the tortfeasor (individual carrying out the tort – battery here) was a true independent contractor. The question was whether the individual/company was working in and for their own business at their risk of profit or loss. The court can look behind the contractual position. In terms of the liability relating to employees of another independent contractor, it was held that this would only arise where the defendant had control and responsibility of the individuals that had been transferred to them.  As a result, there was nothing shown from the claimant that JD Wetherspoon had become the ‘temporary deemed employer’. Therefore, they were not vicariously liable.

Vicarious liability has expanded greatly in an iterative way through the cases. However, this case demonstrates a situation in which vicarious liability does not extend. The process, as outlined by the Court of Appeal, is interesting in that one must consider whether the tortfeasor is an independent contractor and if they are then the issue of ‘akin to employment’ does not need to be explored.

You can read the case in full here.