Date: Jun 27, 2026

No Vicarious Liability for Torts by an Independent Contractor’s Employees Absent a Hawley-Type Transfer of Control

Introduction

In Burger v Risk Solutions BG Ltd & Anor [2026] EWCA Civ 804, the Court of Appeal (Newey LJ, with Jeremy Baker LJ and Bean LJ agreeing) addressed when a business that hires an external security provider can be vicariously liable for an assault committed by the provider’s door supervisors.

The claimant suffered serious injury after being forcibly restrained by two door supervisors outside a pub operated by J D Wetherspoon plc (“JDW”). The door supervisors were employees of Risk Solutions BG Limited (“Risk Solutions”), retained under a written security services agreement. Risk Solutions went into liquidation and was dissolved, leaving the claim to proceed in substance against JDW alone.

The key issue on appeal was the correct approach to “stage 1” vicarious liability (whether the relevant relationship is one of employment or “akin to employment”), where the tortfeasors are employees of a third-party contractor.

Summary of the Judgment

The Court of Appeal dismissed the claimant’s appeal and upheld Sweeting J’s decision that JDW was not vicariously liable.
The Court held that Risk Solutions was a true independent contractor and, as a general rule, the engager (JDW) is not vicariously liable for torts committed by the contractor’s employees in performing the contractor’s obligations.
An exception may arise where there is an “effectively and substantially” complete transfer of control and responsibility to the engager (as in Hawley v Luminar Leisure Ltd), but this was neither pursued on appeal nor supported by the findings.
The Recorder’s approach was erroneous because he did not start by asking whether the door supervisors were acting through a “recognisably independent business of a third party”; instead he treated the BXB “akin to employment” feature-list as the primary framework, notwithstanding the independent contractor context.

Bean LJ added a short concurring judgment, noting regretfully that the claimant would recover nothing because the contractor was dissolved and uninsured, while emphasising that the legal result followed from orthodox principle as clarified by the Supreme Court authorities.

Analysis

Precedents Cited

(A) The classic rule: no vicarious liability for independent contractors

The Court anchored its reasoning in the long-established distinction between employees and independent contractors. It cited:

D&F Estates Ltd v Church Commissioners for England [1989] AC 177 (Lord Bridge’s statement that it is “trite law” that an employer is generally not liable for an independent contractor’s torts).
Quarman v Burnett (1840) 6 M&W 499 (Parke B’s rejection of an overly broad “benefit” principle that would make hirers liable for contractors’ wrongs).

This “classic distinction” was treated as surviving (not eroded by) the modern expansion of vicarious liability to relationships “akin to employment”.

(B) Identifying an independent contractor: “business on one’s own account”

In deciding what makes an entity a “true independent contractor”, the Court relied on authorities traditionally used to distinguish contracts “of service” from “for services”:

Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 (Cooke J’s “fundamental test”: is the person in business on their own account?).
Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 (Privy Council endorsement of the Market Investigations approach).
E v English Province of Our Lady of Charity [2012] EWCA Civ 938, [2013] QB 722 (“E’s case”) (Ward LJ’s formulation: independent contractor works in and for their own business at risk of profit/loss).

Applying these ideas, the Court considered the written contract consistent with Risk Solutions operating an independent business (charging hourly rates, deploying and managing its own staff, and remaining responsible for direction and control).

(C) The modern “two-stage” test and its limits

The Court traced the modern structure to:

Various Claimants v Catholic Welfare Society [2012] UKSC 56, [2013] 2 AC 1 (“Christian Brothers”) (two-stage test; expansion to relationships “akin to employment” based on policy and “incidents”).
Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660 (Lord Reed’s focus on whether the tortfeasor’s activities are integral to the defendant’s business and for its benefit, rather than attributable to a “recognisably independent business of his own or of a third party”).
Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355 (foster parents not running a business of their own; integrated into local authority’s child-care provision).
Various Claimants v Barclays Bank plc [2020] UKSC 13, [2020] AC 973 (“Barclays”) (reassertion that the “akin to employment” expansion does not extend to “true independent contractors”).
BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2023] UKSC 15, [2024] AC 567 (Lord Burrows’ summary of stage 1 features; emphasis that independent contractor cases remain excluded).
X v Lord Advocate [2025] UKSC 44, [2026] 2 WLR 43 (reaffirmation of the BXB framework; constitutional limits in judicial context).

(D) The “temporary employer”/transfer-of-control exception

The Court recognised that vicarious liability may exceptionally attach to the engager where the contractor’s employee becomes, in substance, the engager’s temporary employee:

Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18, [2006] PIQR P17 (doormen found effectively controlled by the club; “effectively and substantially a transfer of control and responsibility”).
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151, [2006] QB 510 (recognition of potential dual vicarious liability, though not applied in Hawley).
Mersey Docks Harbour Board v Coggins and Griffith [1947] AC 1 (classic authority on borrowed/temporary employment).

However, the claimant did not pursue this “temporary deemed employer” route in the Court of Appeal, and the factual findings were insufficient to reach a Hawley-like conclusion in any event.

(E) Appellate restraint on findings of fact

The claimant invoked: In re Sprintroom [2019] EWCA Civ 932, [2019] 2 BCLC 617 and Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48, arguing Sweeting J should not have interfered with evaluative findings. The Court of Appeal effectively treated the issue as one of legal approach: the Recorder started from the wrong legal framework for an independent contractor scenario.

Legal Reasoning

1) The Court’s clarification: where the tortfeasor is employed by a “true independent contractor”, the engager will not “usually” be vicariously liable

The Court’s central move was to treat the “independent contractor” question as logically prior in cases like this. If the tort is committed by employees of a contractor whose business is a “recognisably independent business … of a third party” (the language drawn from Cox and highlighted in Barclays), then the engager ordinarily does not bear vicarious liability for those employees’ torts.

This was presented as consistent with: (i) the “classic distinction” reaffirmed in Barclays, and (ii) Lord Burrows’ insistence in BXB that the “akin to employment” expansion does not undermine the “true independent contractor” exclusion.

2) The “BXB features” are not a complete test for identifying independent contractors

The Court addressed a practical doctrinal question arising from BXB: how Lord Burrows’ list of potentially relevant “features” (integration, control, appointment/termination, hierarchy, benefit, payment) relates to the categorical exclusion for “true independent contractors”.

Newey LJ held that Lord Burrows’ list does not capture all the classic “business on one’s own account” indicators (portfolio clients, ability to refuse work, insurance, profit/loss risk, provision of equipment and helpers). As a result, while the BXB feature-list is useful for “non-employee but not contractor” relationships, it is not “the last word” where the real question is whether the tortfeasor is working through an independent contractor’s business.

3) Contract as starting point (and sometimes sufficient)

The Court rejected a universal requirement to work through all “features” in every case. Echoing Barclays, it held that where it is clear from the contractual terms—and there is no evidence of a substantial divergence between contract and operational reality— the court may treat the contract as sufficient to classify the relationship.

4) Why Risk Solutions was a “true independent contractor” on these facts

On the contract terms, Risk Solutions:

provided security services “through its team of door supervisors” and was to “manage, direct and control” them;
remained responsible for “direction, management and control” of security staff (and JDW was not responsible for such control);
charged JDW by the hour per staff member (recorded via the Trinity system), consistent with service provision by an external business;
promised insurance and gave contractual indemnities to JDW, including for liabilities where JDW was held vicariously liable;
required door supervisors to wear Risk Solutions’ uniform and markings identifying them as its employees.

The Court treated the Recorder’s reliance on matters such as “integration”, “benefit”, and collaboration with management as insufficient in this contractor setting: they are consistent with (indeed typical of) a commercial client engaging specialist services that necessarily interact with site staff.

5) Why Hawley did not apply

The Court accepted Sweeting J’s assessment that the level of subordination and active management present in Hawley v Luminar Leisure Ltd was “considerably greater” than here. There was no finding that JDW exercised near-exclusive, operational, real-time control over how door supervisors deployed, restrained, or made decisions—still less a transfer of responsibility.

Impact

Practical reordering of the stage 1 inquiry in contractor cases: the judgment signals that, where tortfeasors are employees of a contractor, courts should first decide whether the contractor is a “true independent contractor”. If yes, the engager will ordinarily not be vicariously liable, and the “akin to employment” feature-analysis may be unnecessary.
Containment of vicarious liability expansion: the decision reads Barclays and BXB as preserving a robust boundary: modern vicarious liability growth is aimed at “workers” integrated into the defendant’s enterprise, not at outsourced specialist businesses and their staff.
Hawley remains a narrow route: claimants seeking to fix the client with liability for contractor staff will need evidence of a substantial transfer of control/responsibility akin to “temporary employment”, not merely collaboration, site rules, or service standards.
Risk allocation and due diligence: the case highlights that contractual indemnities and insurance obligations may not protect victims where the contractor becomes insolvent or uninsured. While Bean LJ’s comments do not change the legal outcome, they underscore the reputational and consumer-protection sensitivities around outsourcing “frontline” functions like door security.

Complex Concepts Simplified

Vicarious liability: A rule making one party (typically an employer) legally responsible for another person’s tort (e.g., assault) because of the relationship between them and the connection between that relationship and the wrongdoing.
The “two-stage test”: From Christian Brothers: (1) is the relationship employment or akin to employment? (2) is the tort sufficiently connected to that relationship (the “close connection” stage)? This case turned on stage (1).
“Akin to employment”: A non-employment relationship that has enough of the incidents of employment (assignment of work, integration, hierarchical structure, some control, ability to appoint/remove) to make it fair to impose vicarious liability.
“True independent contractor” / “business on one’s own account”: A person or company operating their own enterprise (often with multiple clients, their own organisation, financial risk, and autonomy) providing services to customers. The engager is generally not vicariously liable for that contractor’s torts (or the torts of its employees) merely because the services are for the engager’s benefit.
Temporary employer / transfer of control (Hawley): An exceptional situation where, although a worker is employed by Contractor A, the reality is that Client B so controls and directs the worker that B becomes the de facto temporary employer for vicarious liability purposes.
Non-delegable duty (contrast only): A different doctrine (not decided here) under which a party can owe a duty to ensure reasonable care is taken even if the task is delegated to a contractor (discussed in Woodland v Swimming Teachers Association).

Conclusion

Burger v Risk Solutions BG Ltd & Anor [2026] EWCA Civ 804 reinforces a clear boundary: the modern expansion of vicarious liability to relationships “akin to employment” does not make a business vicariously liable for torts committed by employees of a true independent contractor performing outsourced services, unless the facts support a Hawley-type transfer of control and responsibility.

The Court’s key doctrinal contribution is methodological: in contractor-employee cases, courts should first ask whether the contractor is a “recognisably independent business of a third party”. If so, the engager will not usually be vicariously liable, and feature-balancing aimed at “akin to employment” relationships will often be beside the point.