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Judgment was today handed down by Mr Justice Sweeting in the appeal brought by J D Wetherspoon Plc (JDW) against the decision of Recorder Shepherd who held them vicariously liable for the acts/actions of third party door staff.
Background
In August 2018, Mr Burger attempted to gain entry to a Wetherspoon’s pub in Guildford. He was refused entry by the door staff, and as he walked away was subject to a vicious assault suffering a dislocated hip.
The door staff were provided to JDW by ‘Risk Solutions BG Ltd’, and pursuant to a contact for services, it was expressly stated that any door staff remained under the control and employment of Risk Solutions with the contract providing a contractual indemnity in favour of JDW.
A claim was brought against both defendants with default judgment being entered against Risk Solutions on the basis that they failed to respond to proceedings.
The claim therefore proceeded against JDW.
At Central London County Court, Recorder Shepherd found in favour of the claimant on the basis that whilst there was a contract, he considered that the operation of JDW’s business was so closely entwined with that of Risk Solutions, that the door staff became the deemed employees of JDW. Accordingly, JDW was vicariously liable for the acts of the doorman.
The law
Since about 2001 the law has developed considerably, primarily in response to the historic sexual abuse claims, with the courts required to undertake a two stage enquiry to determine vicarious liability. The stage 1 test considers the relationship between the defendant and the tortfeasor; the stage 2 test considers the link between the commission of the tort and that relationship.
Stage 2 developed initially. In Lister [2001], the Court held that vicarious liability could apply where the act was so closely connected with the employee’s (Lister) employment that it would be just to hold the employer liable. Subsequent decisions refined this and the test of whether it was ‘just, fair and equitable’ to hold the party liable emerged.
As to stage 1, the law has developed beyond the constraints of the employment contract and whether the relationship was akin to employment, with the current state of the law summarised relatively recently in BXB [2023]. The factors the court will consider include: payment, how integral the work is, control and appointment / termination. Crucially this did not: “undermine the traditional position that there is no vicarious liability where the tortfeasor is a true independent contractor in relation to the defendant”.
Appeal
JDW appealed on the basis that the trial Judge had erred in his application of the two stage test to be adopted when considering the issue of vicarious liability. In particular, he had failed to give the contractual arrangements the importance deserved in determining whether Risk Solutions were true independent contractors, placing too much reliance on the stage 2 test when the nature of that relationship was opaque.
Mr Justice Sweeting noted that Recorder Shepherd had focussed on factors such as the integral nature of the work, that JDW could stipulate the uniform to be worn, the door staff being part of an established team and viewed the contract as “merely one of a number of features”.
He accepted the arguments that the Recorder had erred in this approach, and that the starting point must be the contractual relationship between JDW and Risk Solutions which provided for the provision of door staff by an independent third party.
Further, and contrary to the findings of the Recorder, it was held that the interactions and control between the two businesses were supportive of Risk Solutions being a true independent contractor and that these were in place for pragmatic commercial reasons.
What was in place was a contract for services, not a contract of service, and the Recorder had erred in finding the relationship between the door staff and JDW was akin to employment. In fact, they were simply the features of a standard commercial arrangement. Had a contract not been in place providing such specification for the service to be provided, then JDW would likely have been subject to criticism for failing to ensure they had selected a competent contractor against which their competence could be measured.
Comment
This decision confirms the importance of having the appropriate commercial terms encompassed within an agreement when businesses interact - and in particular when staff are provided.
This case confirms that the contract will be central to the determination as to whether vicarious liability exists, and confirms that the courts in such cases will be slow to impose liability on a party engaging the independent contractor.
JDW were represented by Johnathan Payne of Deka Chambers, instructed by Richard McKeown and Ian Ford.
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