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Burger v Risk Solutions BG Ltd & Anor
Factual and Procedural Background
On 5 August 2018 the Appellant was restrained by two security staff outside a pub operated by Company B and suffered a dislocated hip requiring emergency surgery and a short hospital stay. The security staff were employees of Company A, engaged by Company B under a security services agreement dated 16 May 2016. Proceedings were issued on 1 April 2021 against both Company A and Company B. Company A did not defend and a default judgment was obtained but the company had entered liquidation and was dissolved. The claim proceeded against Company B; at trial before Judge Shepherd in September 2023 the Judge found assault and held Company B vicariously liable, awarding damages to the Appellant. Company B appealed. Judge Sweeting allowed that appeal on 21 May 2025, concluding Company B was not vicariously liable. The Appellant appealed to the Court of Appeal. The Court of Appeal (Judges Newey, Jeremy Baker and Bean) heard the appeal and delivered judgment dismissing it.
The Contract between Company B and Company A provided that Company A would supply and manage a team of door supervisors (including deciding numbers and preparing an agreed plan), that the door supervisors would wear specified uniforms and identify themselves as employees of Company A, that Company A would procure licences and comply with standards (including using no more than minimum necessary force and confirming agreement to Company B's restraint policy), that Company A would remain responsible for direction, management and control of its security staff, and that Company A would indemnify Company B for liabilities arising from the conduct of its security staff. Company B paid Company A on an hourly basis recorded through a time-recording system.
Legal Issues Presented
- Whether Company B was vicariously liable for the torts (battery/assault) committed by employees of Company A while performing security duties at Company B's premises.
- Whether the relationship between the tortfeasors and Company B was "akin to employment" or whether the tortfeasors were acting for a "true independent contractor" (Company A) such that vicarious liability would not arise.
- Whether the trial judge (Judge Shepherd) erred in applying the factors for "akin to employment" without first determining whether Company A was a true independent contractor, and whether the appellate judge (Judge Sweeting) was entitled to overturn the trial judge's evaluative findings.
Arguments of the Parties
Appellant's Arguments
- Attorney Mulcahy submitted that the stage‑1 inquiry must focus on the relationship between the tortfeasors (the door supervisors) and Company B, not merely the contractual relationship between Company B and Company A.
- The Appellant argued all features of the relationship should be considered (contract terms plus practical reality) and that Judge Sweeting improperly treated the contract as determinative and impermissibly went behind the trial judge's factual findings and evaluative assessments.
- The Appellant relied on authorities (including Hawley) and submitted that the trial judge was entitled to find Company B effectively assumed control and responsibility.
Respondent's Arguments (Company B)
- Attorney Faulks submitted Company A was plainly an independent contractor carrying on its own business; vicarious liability does not extend to torts committed by true independent contractors.
- In doubtful cases the enumerated features from precedent may assist, but here the contractual position was an appropriate starting point and the factors on which the trial judge relied were compatible with a standard commercial engagement of an independent contractor.
- It was not suggested Company B had effectively and substantially taken over day‑to‑day control of the security staff as was the case in Hawley.
Table of Precedents Cited
| Precedent (anonymised) | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Party A v Party B [1989] AC 177 | General proposition that the employer of an independent contractor is, in general, not liable for torts of the contractor. | Used to support proposition that liability ordinarily does not extend to torts committed by employees of an independent contractor. |
| Quarman v Burnett (1840) 6 M&W 499 | Early statement that master-servant liability ceases where the relation ceases; third parties contracting with master not liable as master. | Referenced as historical authority for the distinction between employer liability and liability for independent contractors. |
| Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 | Fundamental test: whether the person performs services "as a person in business on his own account". | Adopted as foundational guidance on distinguishing independent contractors from employees. |
| Lee Ting Sang v Chung Chi‑Keung [1990] 2 AC 374 | Discussed multi-factorial approach to employment/contractor distinction. | Referenced for the proposition that control is relevant but not determinative. |
| E v English Province of Our Lady of Charity [2013] QB 722 | Definition: employee paid a wage/salary working under some control; independent contractor works for own business at risk of profit or loss. | Quoted to encapsulate distinction between employees and independent contractors. |
| Hawley v Luminar Leisure Ltd [2006] PIQR P17 | Illustration of "temporary employer" where substantial transfer of control can render hirer vicariously liable. | Identified as factually distinguishable; Court noted Hawley involved greater subordination and control than present case. |
| Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 | Recognition of potential for dual vicarious liability in certain contexts. | Mentioned as background on dual liability but not outcome-determinative here. |
| Various Claimants v Catholic Welfare Society [2013] 2 AC 1 ("Christian Brothers") | Two‑stage test: (1) relationship akin to employment; (2) connection between relationship and tort; policy reasons for vicarious liability. | Framework applied: stage 1 inquiry considered, including the "incidents" identified by Lord Phillips; used to structure analysis of whether Company B was vicariously liable. |
| Woodland v Swimming Teachers Association [2014] AC 537 | Clarified limits of vicarious liability and that it does not extend to true independent contractors. | Referred to for the proposition that the expansion to "akin to employment" does not encompass true independent contractors. |
| Cox v Ministry of Justice [2016] AC 660 | Confirmed relationship other than employment can give rise to vicarious liability where individual carries on activities as integral part of defendant's business and risk created by defendant. | Quoted to emphasize that activities entirely attributable to a recognisable independent business are unlikely to attract vicarious liability. |
| Armes v Nottinghamshire County Council [2018] AC 355 | Held foster parents' care was integral to local authority's organisation such that relationship akin to employment could arise. | Used to illustrate that where individuals are not carrying on own business but act as part of defendant's organisation, stage 1 may be satisfied; contrasted with present facts. |
| Various Claimants v Barclays Bank plc [2020] AC 973 | Emphasised continued distinction between independent contractors and relationships akin to employment; factors to consider when not clear. | Applied to stress that where tortfeasor carries on own business (portfolio practice, freedom to refuse work, insurance), defendant not vicariously liable. |
| BXB v Trustees of the Barry Congregation of Jehovah's Witnesses [2024] AC 567 | Summarised principles; stage 1 is whether relationship is employment or akin to employment; provided list of potentially relevant features. | Cited as the formulation the trial judge applied; Court of Appeal analysed how that formulation must be used and whether it displaced traditional independent contractor analysis. |
| X v Lord Advocate [2026] 2 WLR 43 | Discussed limits of akin to employment in specific institutional contexts (judiciary not akin to employment). | Referred to as part of the modern authorities clarifying scope of vicarious liability. |
| Ng Huat Seng v Munib Mohammed Madni [2017] 2 SLR 1074 | Singapore authority refining doctrine to accommodate varied relationships and emphasising independent contractor exception. | Referenced to support caution against expanding vicarious liability to torts of independent contractors. |
| Party C v Party D [1947] AC 1 (Mersey Docks Harbour Board v Coggins and Griffith) | Authority on "temporary deemed employer" / transfer of control principles. | Mentioned in particulars but not pursued on appeal; Court noted facts did not support finding of temporary deemed employer. |
| In re Sprintroom [2019] 2 BCLC 617 | Authority on appellate interference with trial judge findings in commercial contexts (referenced by Appellant). | Cited by Appellant to argue Judge Sweeting should not have overturned trial judge's evaluative findings; Court considered but concluded appellate interference was justified here. |
| Volpi v Volpi [2022] 4 WLR 48 | Authority on limits to appellate review of findings. | Relied upon by Appellant in submissions; Court nonetheless held appellate intervention appropriate on the legal approach adopted by trial judge. |
| Clerk & Lindsell on Torts (24th ed.) | Textual statement that employer of an independent contractor is generally not responsible for torts of that contractor and that the contractor's employees stand in same position as employer. | Quoted to support the conclusion that Company B, who engaged an independent contractor, would not normally be vicariously liable for torts of the contractor's employees. |
Court's Reasoning and Analysis
The Court identified the governing legal framework from the Supreme Court authorities: vicarious liability requires (stage 1) a relationship of employment or one akin to employment and (stage 2) a sufficient connection between that relationship and the tort. The Court emphasised that the expansion to "akin to employment" does not displace the long‑standing distinction that there is no vicarious liability for torts of a true independent contractor.
The Court analysed the Contract and the factual findings. It concluded that Company A was a recognisable independent contractor: the Contract contemplated Company A determining staffing, providing uniforms bearing Company A's badge, procuring licences, managing and directing its staff, and being paid an hourly fee by Company B. These features were consistent with Company A carrying on its own business and bearing profit/loss risks. The Court distinguished Hawley (temporary employer) on the facts, noting that Hawley involved a substantially greater transfer of control and integration into the hirer's organisation than present.
The Court held that the Recorder erred by treating the BXB factors as if they displaced the primary question whether the contractor was a true independent business. The proper approach was to determine at the outset whether Company A was a true independent contractor; having found that it was, the Court concluded Company B was not vicariously liable for torts committed by employees of Company A. The Court therefore upheld Judge Sweeting's analysis and allowed the appeal from the trial judge's judgment in favour of Company B.
Holding and Implications
APPEAL DISMISSED
Holding: The Court of Appeal dismissed the Appellant's appeal and upheld the conclusion that Company B was not vicariously liable for the assault committed by employees of Company A.
Implications: The direct effect is that the trial judgment holding Company B liable was set aside; Company B is not liable to compensate the Appellant for the injury in respect of which Company A had initially borne liability but had become insolvent and dissolved. The Court applied established principles distinguishing true independent contractors from relationships akin to employment and did not alter the existing doctrinal framework in the authorities it considered.
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