JD Wetherspoon Plc v Stephenus Bernadus Burger [2025] EWHC 1259 (KB)

[2025] EWHC 1259 (KB)Case No KA-2023-000191
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2025
Before
THE HONOURABLE MR JUSTICE SWEETING
Between
J D WETHERSPOON PlcAppellant
Johnathan Payne (instructed by Kennedys Law LLP) for AppellantLia Moses (instructed by Penningtons Manches Cooper LLP) for RespondentHearing Hearing dates: 4 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 21.05.2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE SWEETING

Introduction

[1]This is an appeal from the order of Recorder Shepherd ("the Recorder") dated 20th September 2023, following a trial in a personal injury claim brought by Mr Stephanus Burger (“Mr Burger” or "the Claimant") against J D Wetherspoon Plc ("JDW" or "the Appellant") and Risk Solutions B G Limited ("Risk Solutions" or "the First Defendant").[2]On 5 August 2018 Mr Burger was restrained by two door supervisors outside a pub operated by Wetherspoons with such force that he suffered a dislocated hip, requiring emergency surgery and a three-night hospital stay. The door supervisors were employees of Risk Solutions who were engaged by JDW to provide door security at the pub on three nights of the week, pursuant to a Security Services Agreement (“the Agreement”).[3]A claim for damages for personal injuries was issued on 1 April 2021 and served on Wetherspoons and Risk Solutions. The latter failed to acknowledge service or file a defence. Judgment in default was entered against Risk Solutions on 5 August 2021. I was not told what steps have been taken to enforce that judgment or whether any insurance policy has responded to the claim. The litigation then proceeded against JDW alone. A trial took place before Recorder Shepherd at the Central London County Court over three days from 18 to 20 September 2023.[4]At trial, the Claimant relied on witness evidence, CCTV recordings, bodycam footage, and medical reports to establish how his injuries had occurred, their nature, severity, and prognosis. The door supervisors who were on duty and involved in restraining the Claimant did not give evidence. JDW advanced arguments on the contractual and legal relationship between itself and Risk Solutions as well as in relation to what could be seen on the CCTV and bodycam footage. JDW relied on the evidence of three of its employees at trial: i) Chris Latham, the deputy manager of the pub. His witness statement provided details of the aftermath of the incident and JDW's approach to maintaining security at the pub. ii) Ged Murphy, a general manager overseeing the running of over 180 pubs. His witness statement detailed JDW's approach to the management of door supervisors. iii) Danny Nixon, the manager of the pub. His witness statement described the aftermath of the incident and JDW's approach to maintaining security.[5]The Recorder found in favour of the Claimant, holding that JDW was vicariously liable for the actions of the security personnel. Damages of £71,308.67 were awarded, including compensation for future private medical treatment. JDW sought permission to appeal, which was refused at first instance. An Appellant’s Notice was filed on 6 October 2023. Permission to appeal was subsequently granted by Spencer J on 22 February 2024 on all grounds.[6]The Appellant seeks to overturn the Recorder's decision on grounds which challenge the findings on vicarious liability and the award for private medical treatment. These include challenges to the imposition of vicarious liability where the contract was with an independent contractor (Ground 1), the weight given to elements of control rather than the contract (Ground 2), the failure to evaluate commercial reality and enterprise risk (Ground 3), the finding that Stage 2 of the vicarious liability test was satisfied (Ground 4), the failure to consider relevant binding legal authority other than Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 ("BXB") (Ground 5), and the lack of evidence for a finding that the Claimant would have future hip revisions privately (Ground 6).

Future Revision Surgery

[7]The sixth ground of appeal raises a discrete issue. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 provides that in a claim of this nature “there shall be disregarded, in determining whether any expenses are reasonable, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service".[8]Nevertheless, courts do consider, in relation to future care and treatment, whether a claimant is likely on the balance of probabilities to use NHS facilities, primarily if the required care is unavailable privately. This does not detract from the claimant's entitlement to opt for private treatment. The choice of self-funding, where available, has been recognised as a right, unqualified by considerations of reasonableness in the context of mitigation of loss (see Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145).[9]Before the Recorder, it was common ground between the medical experts that the Claimant's injury necessitated future hip replacement surgery which was likely to involve one procedure between the ages of 40 and 45 and a further revision around age 70. The experts also agreed that the cost of each hip replacement in the private sector would be in the region of £15,000. The Claimant quantified the future costs of this medical treatment at £31,975.50 in his Schedule of Loss.[10]The evidence before the Judge included the Claimant's witness statement, which mentioned being placed on an accelerated NHS list for hip replacement in the past but did not explicitly state his future intentions regarding private, as against NHS, treatment. The Claimant's Schedule of Loss, however, claimed the cost of two privately funded future hip replacements. JDW's Counter-Schedule contended that the procedure was available on the NHS, that there was no particular benefit from private treatment, that NHS waiting lists were not prohibitive, and that, in those circumstances, there was no sustainable claim for private treatment (on the balance of probabilities as to what would occur in future).[11]During cross-examination, the Claimant responded affirmatively when asked if he was "going to go back on the NHS list to get [his] hip done". JDW relied heavily on this exchange, submitting that it demonstrated that the Claimant was more likely than not to obtain treatment on the NHS.[12]The Recorder considered this part of the cross-examination but concluded that the question posed, and the answer given, did not definitively establish the Claimant's intention to only use the NHS. He reasoned that the Claimant's answer might have been influenced by his circumstances at the time, lacking the means from a damages award to fund private treatment. "I also take into account the inherent probabilities, namely that if the claimant were put into means by an award of damages, whether or not it is likely that he would avail himself of the ability to privately fund the treatment".[13]The Recorder considered that JDW sought to attribute undue weight to the exchange in cross examination when set against the totality of the evidence. He found that the Claimant's Schedule of Loss, constituted evidence of his intention. Furthermore, he noted that JDW had not adduced positive evidence to refute the Claimant's case for private treatment and considered JDW’s argument regarding the burden of proof to have conflated the issues.[14]The Recorder properly considered the inherent probabilities, determining it was more likely than not that if the Claimant were provided with the means, by an award of damages, he would choose to fund his treatment privately. Based on this assessment of the evidence, he found on the balance of probabilities that the Claimant was likely to undergo the procedures privately and was therefore entitled to recover the associated costs.[15]I consider that the Recorder's finding was an entirely permissible conclusion based on the evidence before him. While the Claimant's cross-examination answer, taken in isolation, might suggest an intention to use the NHS, the judge was entitled to assess this answer in the context of all the evidence, including the Claimant's formal claim for the private cost of treatment in his Schedule of Loss. The Recorder's reasoning that the Claimant's position might change if he had the financial means provided by a damages award is sound and reflects the reality that a claimant's stated intentions regarding future care, made when potentially lacking the means for private treatment, may evolve once funds are available.[16]Whilst the burden was on the Claimant to prove his prospective loss on the balance of probabilities, the Claimant discharged that burden in the manner identified by the Recorder. The cross-examination did not, in the Recorder's view, amount to sufficient positive evidence to rebut the case advanced in the Schedule of Loss, nor does it persuade me that the Recorder erred in his evaluation.[17]Accordingly, there was no error in the Recorder's approach to the evidence or his application of the relevant legal principles. The finding that the Claimant was likely to use private treatment if funded by damages is a finding of fact reached after a proper evaluation of the available material.[18]The amount awarded for this head of loss, £31,970, was based on the agreed estimate of £15,000 per surgery for two procedures. This quantification was therefore also properly supported by the evidence.[19]For the reasons set out above this ground of appeal is therefore dismissed.

Vicarious Liability – The Legal Framework

[20]The legal principles which impute liability to an employer for an employee's wrongful acts, have evolved significantly over time. Initially, the doctrine was narrowly applied, requiring the master's direct command or consent. However, influenced by commercial and industrial growth in the 17th century, the principle broadened, so that employers were accountable for those they employ, provided the employee was acting within their given authority. A key point of contention, the requirement that the wrongful act must benefit the employer, was definitively rejected by the House of Lords in Lloyd v Grace, Smith & Co [1912] AC 716, allowing liability to be established even when the employee pursued their own objectives while ostensibly acting within their duties.[21]For a considerable part of the 20th century, the boundaries of vicarious liability were considered largely settled. The standard position was that an employer was vicariously liable for the torts of an employee committed in the course of employment, but not for those committed by an independent contractor. The concept of an act performed in the "course of employment" was often explained by reference to the test formulated by Sir John Salmond, which covered not only wrongful acts authorised by the employer but also a wrongful and unauthorised way of doing an authorised act.[22]The landscape of vicarious liability began to undergo significant change and expansion from around 2001, particularly in response to claims arising from the sexual abuse of children and also from the need to reflect changes in working relationships. This period saw the recognition of a two-stage inquiry for determining vicarious liability: Stage 1 is concerned with the relationship between the defendant and the tortfeasor, and Stage 2 is concerned with the link between the commission of the tort and that relationship. Both stages must be satisfied.[23]The expansion began at Stage 2, with the decision of the House of Lords in Lister v Hesley Hall Ltd [2001] 1 AC 215 marking a departure from a strictly literal application of the Salmond test. The Court recognised that vicarious liability could arise even where the employee's actions were not merely an unauthorised mode of performing an authorised act, provided that the torts were "so closely connected with his employment that it would be just to hold the employers liable." Lord Millett's articulation of this principle, suggested liability could be imposed where "the unauthorised acts of the employee are so connected with acts which the employer has authorised that they may properly be regarded as being within the scope of his employment”.[24]The "close connection" test was subsequently refined and authoritatively stated by Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366. In that commercial fraud case, his Lordship held that the wrongful conduct must be:
"so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment."
[25]This formulation has been consistently endorsed by subsequent appellate courts. The underlying rationale for this expanded approach lies in policy considerations of fairness, specifically the allocation of the risk of losses arising from employees exceeding their authority or acting contrary to instructions, to the business enterprise that benefits generally from their activities. This necessitated a more expansive interpretation of the "ordinary course of employment."[26]The Supreme Court has repeatedly affirmed the "close connection" test articulated in Dubai Aluminium. Thus, in Mohamud v Wm Morrison Supermarkets plc [2016] UKSC 11 ("Morrison 1"), Lord Toulson referred to the need for a "sufficient connection," (see also Various Claimants v Wm Morrison Supermarkets plc [2020] UKSC 12 ("Morrison 2"), and most recently in BXB v Trustees of the Barry Congregation of Jehovah’s Witnesses [2022] UKSC 15 ("BXB").[27]Thus, the established legal framework requires a careful examination of the connection between the employee's role and the wrongful conduct complained of. The question for this court is whether, applying the principles outlined above, the actions of the door supervisors were so closely connected with their authorised duties that it is fair, just and reasonable to hold their employer vicariously liable.[28]The law has also expanded at Stage 1 to encompass relationships beyond the strict confines of a contract of employment. In Various Claimants v Catholic Child Welfare Society [2012] 2 AC 1 ("Christian Brothers") the court held that relationships "sufficiently analogous to employment" or "akin to employment" could give rise to vicarious liability. Lord Phillips identified several policy reasons or “incidents”, which typically justify imposing vicarious liability, including the employer's ability to compensate, an activity being carried out on behalf of or as part of the employer's business, the employer creating the risk, and the degree of control over the employee.[29]Lord Reed, in Cox v Ministry of Justice [2016] AC 660, further elaborated on the rationale for imposing vicarious liability in relationships “akin” to employment. He moved away from an over-reliance on factors such as control and the "deep pockets" argument towards concepts such as "enterprise risk" or "enterprise liability." In relation to “control” he observed:
“The fifth of the factors that the tortfeasor will, to a greater or lesser degree, have been under the control of the defendant no longer has the significance that it was sometimes considered to have in the past, as Lord Phillips PSC immediately made clear. As he explained at para 36, the ability to direct how an individual did his work was sometimes regarded as an important test of the existence of a relationship of master and servant, and came to be treated at times as the test for the imposition of vicarious liability. But it is not realistic in modern life to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee; nor indeed was it in times gone by, if one thinks for example of the degree of control which the owner of a ship could have exercised over the master while the ship was at sea. Accordingly, as Lord Phillips PSC stated, 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”
[30]The underlying principle is that an enterprise that takes the benefit of activities carried on by a person integrated into its organisation should also bear the cost of harm wrongfully caused by that person in the course of those activities. This principle was applied, for example, in Armes v Nottinghamshire County Council [2017] UKSC 60, where it was held that foster parents could not be regarded as carrying on an independent business of their own for the purposes of Stage 1.[31]Notwithstanding this expansion, the rule that an employer of a true independent contractor is generally not liable for the contractor's torts has been consistently reaffirmed. This principle dates back to Quarman v Burnett (1840) 6 M & W 499 and was reiterated in cases such as D & F Estates Ltd v Church Comrs for England [1989] AC 177 and Woodland v Swimming Teachers Association [2013] UKSC 66.[32]The Supreme Court clarified the boundaries of the modern law, particularly concerning the distinction between relationships akin to employment and independent contractors, in Various Claimants v Barclays Bank plc [2020] UKSC 13 ("Barclays Bank"), decided alongside Morrison 2. The case involved claims by numerous individuals who alleged they had been sexually assaulted by Dr Gordon Bates during pre-employment medical examinations carried out for the bank between 1968 and 1984. The claimants sought to hold Barclays vicariously liable for Dr Bates' actions. Dr Bates was a medical practitioner with a portfolio practice who performed miscellaneous work for various clients, including medical assessments and examinations for Barclays. He ran his own business, had his own insurance, and could work for other clients.[33]The central issue in Barclays Bank, relevant to the present appeal, was whether the relationship between Barclays Bank and Dr Bates was one that could give rise to vicarious liability. Specifically, the court considered whether an employer could be vicariously liable for the torts of an independent contractor. This question falls within the first stage of the two-stage inquiry and so is concerned with the relationship between the defendant and the tortfeasor. Lady Hale, giving the judgment of the court, made clear that the expansion of vicarious liability to include relationships "akin to employment" did "not extend to rendering an employer vicariously liable for the torts of 'true independent contractors'." The long-standing distinction remains of "crucial importance." The question for Stage 1 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 [2013] 2 AC 1, Cox [2016] AC 660 and Armes [2018] AC 355, 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.”
[34]In Hughes v Rattan [2022] 1WLR 1680, Bean LJ suggested that in cases involving a business engaging the services of another business the focus should be on the commercial arrangements:
“Thus following Barclays the critical question now appears to have reverted to being whether the alleged tortfeasor’s relationship with the defendant can properly be described as being “akin” (or “analogous”) to employment, with the focus being on the contractual arrangements between tortfeasor and defendant.”
[35]Most recently, in BXB, Lord Burrows provided a summary of the modern law on vicarious liability. He reiterated the two-stage test. For Stage 1, he listed factors that a court may consider when assessing whether a relationship is akin to employment, such as payment, how integral the work is, control, benefit to the defendant, appointment/termination, and hierarchy. Drawing on Barclays Bank, he reiterated 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."
[36]For Stage 2, he confirmed that the correct test remains the "close connection" test derived from Lister and Dubai Aluminium, as confirmed in Morrison 2. While the underlying policy is often debated, the tests themselves are products of that policy and generally apply without constant recourse to the policy justifications.

The Contractual Matrix

[37]The agreement between JDW and Risk Solutions stipulated that Risk Solutions would be responsible for the direction, management and control of their employees. It was expressly agreed that JDW would not be responsible for the direction, instruction, management, or control of the operatives of Risk Solutions. Risk Solutions acknowledged and agreed that the control of their staff was their sole responsibility.[38]Schedule 1 of the contract outlined what Risk Solutions was to do, while Schedule 3 detailed the “Standards of Service” to which the security staff were to adhere.[39]Risk Solutions was required to have employer's liability insurance. The agreement stipulated that insurance was in place for the actions of the door supervisors.[40]Wetherspoons had the power, in effect, to remove door supervisors at the Pub although this was couched in terms of a request in the event of a breach of the Agreement and was not a right to hire or fire.[41]Clause 3.10 reads: “In the event of a breach of this Agreement, including (but not limited to) a failure by [Risk Solutions] to provide, or procure the performance of, the Services in accordance with the agreed Standards of Service, [Wetherspoons] may request that any responsible member of Security Staff be replaced at its Premises”.[42]Wetherspoons required an indemnity, provided at clause 5.4, “in respect of any liability of [Wetherspoons] arising out of acts or omissions of the Security Staff for which [Wetherspoons] is held vicariously liable”.[43]JDW could specify what uniform Risk Solutions staff should wear. Door supervisors were required to wear the “uniform or badge provided by [Risk Solutions], in particular wearing at all times a visible badge or other marking identifying him as the employee of [Risk Solutions]”. The Agreement specified a uniform of “black tailored trousers, black shoes (no trainers), shirt with collar (no polo shirts). A waistcoat, formal jacket or crombie coat is optional”.[44]Paragraph 5(d) of Schedule 1 of the contract between Wetherspoons and Risk Solutions makes clear that the door supervisors were authorised to perform “the general prevention of crime”.[45]The Agreement referred to the fact that JDW and Risk Solutions were different corporate entities with different registration numbers.[46]Mr Murphy’s statement said:
“9. As with all security contractors, the contract with Risk Solutions sets out practical steps the contractor must comply with in order to satisfy its contractual obligation to JDW to provide security services to JDW. 10. In particular, the contract requires that all door security staff performing services at the Pub hold a valid SIA (Security Industry Authority) licence. It is a mandatory licence condition under the Licensing Act 2003 for all door security staff to hold a valid SIA Licence when performing their duties. 11. In order to verify the SIA status of the door security staff, when they arrive to start their shift at JDW’s premises, they are required to provide their SIA badge number in order to log onto a system called Trinity. This checks that the SIA badge number is valid and the door security staff will only be allowed to work if they hold a valid licence. [...] 13. There are various schedules attached to the contract. The first schedule sets out the services which the door security staff are engaged to provide. This confirms one of the required services is the restraint of persons from causing or threatening injury at JDW’s premises. This is qualified by stating that the door security staff shall act in accordance with the law, and that in restraining or dealing with any person they shall use no more than the minimum necessary force. 14. Schedule 3 to the Contract goes into further detail about the standards of service to be provided by the door security staff. This reiterates that the door security staff are to comply with the law and should never use physical force, except where there is a lawful excuse... [...] 19. As stated before, whilst JDW relies upon the expertise of the door security contractors, it also takes various steps to satisfy itself, that it has sourced a contractor who will ensure its agents carry out those services in a reasonably competent manner. 20. One such step is using trusted door security contractors with whom JDW has an existing and established relationship.”
[47]Mr Latham’s witness statement said:
“20. Whilst working at the Pub, the head doorman would decide where to locate the members of door security staff. There was usually two or three working on the front door, two on the side entrance, one upstairs and two in the downstairs interior of the Pub. The head doorman always stayed on the front door and the rest of the team tended to rotate. [...] 22. Some of the door security staff also wore body cameras. The body cameras were provided to the door security staff by the Pub. At the time, I believe we had two or three cameras which would be given to the head doorman at the start of the shift. He would then decide which door security staff would wear the cameras. There was always at least one camera located on the front door. [...] 25. The door security staff did not receive any training from JDW. They were provided by the third-party security company as fully trained and competent door security staff holding valid SIA licences. New members of door security staff were usually given a walk around the Pub to show them the fire exits and positions where they would be located, however this was ordinarily completed by the head doorman. 26. Whilst working at the Pub, the door security staff were required to control admissions to the Pub and, where necessary, evict customers who were causing trouble. 27. When dealing with customers attempting to gain entry to the Pub, the door security staff had the discretion to refuse entry where they considered appropriate. The criteria for refusing entry was if a customer was intoxicated, if they were behaving in an unusual or abnormal way, or if they were being aggressive. There was no dress code for which entry could be refused. The door security staff did not need to inform or seek the authority of the Pub staff to refuse entry. 28. As the experts, the First Defendant and its employees were responsible for determining how to deal with certain customers. They had undergone SIA training and had the knowledge to decide when the use of reasonable and lawful force was necessary. [...] 33. I understand the door security company providing services to the Pub was selected by the Area Manager from an approved list of contractors provided by JDW’s head office. [...] 35. When the door security staff are working at the Pub, there is fairly frequent communications between them and the Pub’s management team. Generally, one of the managers checks in every twenty to thirty minutes with the door security staff to ensure everything is running okay. Occasionally, the Pub staff contact the door security staff, either by speaking with them or over the radio, to ask for their assistance in the event a difficult situation has arisen. 36. When the door security staff are in the Pub, the Pub staff rely upon them to deal with security incidents and any violent or aggressive customers.”
[48]Whilst it is true that the Recorder was in some respects less than complimentary about the way in which the JDW witnesses had given their evidence, I was directed to the substance of what they had said (in transcripts of the evidence given at the trial). It does not appear to me that any of the statements set out above in the written evidence were departed from or challenged. The approach being taken in cross examination was essentially by way of assertion as to the meaning and effect of the contractual arrangements. It can perhaps best be illustrated by a passage from the initial cross examination of Mr Murphy on the schedules to the Agreement:
“A. ... Risk Solutions is an independent company, Wetherspoon’s is an independent company, so this is the agreement between the two companies of what services, what we expect them to provide. MS MOSES: Yes, so this is Wetherspoon’s setting out what services it expects from the employees of Risk Solutions, yes? A. Yes. Q. And in setting out what services it expects, it is telling those employees what to do, is it not? A. No, it’s - it’s saying that this is the standard of service that we require.”
Discussion and Conclusions The Stage 2 Test

Discussion and Conclusions

[49]It is convenient to consider the Stage 2 or the "close connection" test first. As set out earlier this test requires consideration of whether the wrongful conduct of the individual who committed the tort (the tortfeasor) was so closely connected with acts that the tortfeasor was authorised to do that it can fairly and properly be regarded as done by the tortfeasor while acting in the course of their employment or quasi-employment. This is the test as refined and applied in Dubai Aluminium, drawing upon the principles established in Lister v Hesley Hall Ltd, and approved in Morrison 1 and Morrison 2.[50]The application of this "close connection" test necessitates a careful factual analysis of the link between the wrongful conduct and the tortfeasor's authorised activities. A mere causal connection, satisfying the "but for" test, is not in itself sufficient to satisfy this requirement. The test requires an evaluative judgment by the court in each case.[51]On the facts found by the Recorder at first instance, Mr Burger visited a public house operated by JDW and was subjected to a battery by door security staff employed by Risk Solutions. The Recorder found that this was an unprovoked and appalling attack, occurring whilst the Claimant was walking away from the pub entrance. One of the door supervisors deliberately jumped into Mr Burger's back with his knee, and then he and another door supervisor exerted disproportionate force upon Mr Burger, causing his hip to dislocate.[52]The authorised activities of the door security staff included maintaining order and managing entry to the premises. The contract between JDW and Risk Solutions made clear that the tortfeasors were authorised to perform "the restraint". The encounter with Mr Burger occurred while the staff were engaged in their designated duties as door supervisors tasked with enforcing entry policies and ensuring safety.[53]The Recorder's finding that the actions of the door security staff, although excessive and appalling, were directly linked to their function as doormen was clearly open to him on the evidence. The assault arose directly from the interaction of the door supervisors with the Claimant on his entry to the premises and his subsequent departure. The use of force, even if grossly disproportionate and deliberate, occurred in the context of exercising or purporting to exercise the authority entrusted to them to manage access and maintain order.[54]It was submitted on behalf of JDW that the actions of the door staff constituted a personal vendetta against Mr Burger for his rude and insulting behaviour, and that such actions were outside the scope of their employment. However, the Recorder did not make any finding that the attack was a deliberate act carried out as part of a vendetta for what may have been said between the door supervisors and the Claimant.[55]Even if the tortfeasors were motivated by personal animosity arising from the interaction, this does not necessarily preclude a finding of vicarious liability. The Supreme Court in Morrison 1 held that an employer could be vicariously liable for an employee's unprovoked assault on a customer where the employee misused the position entrusted to him. In that case, a petrol station attendant's assault following a customer inquiry was found to be within the "field of activities" assigned to him, despite being inexcusable conduct. The crucial factor was the close connection between the employee's job (attending to customers) and the wrongful conduct, which arose from an unbroken sequence of events following the interaction.[56]The present case is analogous to Morrison 1. The door security staff's job involved interacting with members of the public seeking entry to the pub and maintaining order. The assault occurred as a direct and immediate consequence of an interaction within that field of activity, the refusal of entry and the ensuing exchange. The tortfeasors were purporting to act in their capacity as security personnel enforcing access policies and reacting to perceived misconduct, albeit in a wholly unwarranted and excessive manner. Their conduct, though a gross abuse of their position, was connected with the function Risk Solutions, had been engaged to carry out.[57]The Recorder found that Stage 2 of the test was satisfied. This finding was supported by a concession, albeit qualified, from counsel for JDW during closing submissions. Even absent the concession, the Learned Recorder stated that he had no difficulty in making this finding, taking into account all of the evidence which included contractual authorisation for restraint and video footage showing the tortfeasors acting in their capacity as security guards.[58]I am satisfied that the Learned Recorder was entitled to find that the wrongful conduct of the door security staff was sufficiently closely connected with their authorised activities to impose vicarious liability on the employer. The assault was not an isolated act disconnected from their role, but rather an excessive and wrongful mode of performing, or purporting to perform, their duties related to managing entry and maintaining order. For these reasons, the finding that the assault occurred in the course of the work being carried out by the door security staff was one the Learned Recorder was plainly entitled to reach. As Mr Payne realistically accepted this was not his strongest ground of appeal.

The Stage 1 Test

[59]The Recorder found JDW vicariously liable on the basis that the relationship between JDW and Risk Solutions (and/or the door staff) was "akin to employment" and that the tortious conduct occurred in the course of this quasi-employment. He specifically found that Risk Solutions was not carrying on its "true own independent business" in the sense set out by Lord Burrows in BXB, taking into account the totality of the evidence and weighing the factors identified in BXB and more.[60]Ms Moses relied upon the decision in Volpi v Volpi [2022] EWCA Civ 464 as setting out the established principles governing appellate challenges to findings of fact made by a trial judge. The principles, as summarised at paragraph 2 of the judgment in Volipi, and adopted by the Respondents, include that an appellate court should only interfere with a trial judge's conclusions on primary facts if satisfied that the judge was "plainly wrong". The term "plainly" in this context signifies that the decision must be one that no reasonable judge could have reached, not merely that the appellate court would have arrived at a different conclusion. Thus, a judgment can only be set aside for unbalanced consideration of evidence if the conclusion is rationally insupportable. Judgments should not be subjected to narrow textual analysis.[61]However, it is necessary to consider the nature of the challenge brought in the present case. While the appeal does involve a review of the factual conclusions reached by the Learned Recorder, the material facts themselves were, in large part, not subject to any significant dispute. The challenge appears to be directed more towards the evaluation of those largely undisputed facts, the inferences drawn from them, and the application of legal principles, specifically the test for vicarious liability, to the factual matrix.[62]In circumstances where the primary facts are largely undisputed, an appellate court may be in a position to review the evaluation of those facts and the inferences drawn with a greater degree of readiness than when the appeal turns on the resolution of conflicting oral testimony or assessments of witness demeanour. As noted in Hughes v Rattan, where the primary facts are very largely undisputed and the issue is essentially one of law, the deference accorded to the trial judge's evaluation is reduced. I consider that in this case the appellate court is well placed to take its own view on the evaluation of those facts and the application of the relevant legal tests to them.[63]However, I should specifically mention one part of the oral evidence at trial that Ms Moses relied on at first instance and on appeal. Ms Moses submitted that Mr Murphy made a concession during his oral evidence. The specific statement relied upon as constituting this concession was Mr Murphy's concluding remark after a series of questions about policy and risk:
"That's why we employ subcontractors"
. The Claimant contended that this statement by Mr Murphy indicated a deliberate policy decision by Wetherspoons to attempt to evade liability for the actions of security staff engaged through contractors. This point was pleaded and advanced before the Recorder who mentioned it in his judgment [104] as something that he took into account in his assessment of whether it was fair just and reasonable to impose liability. For my part this factor appears to point in the opposite direction. A policy of engaging a specialist contractor to provide licensed and trained personnel acknowledging the risks involved in dealing with members of the public in situations which might require the use of physical force does not suggest an attempt to evade liability but to minimise risk (including to the public) through a commercial arrangement with a competent supplier.[64]The Appellant's primary argument in Grounds 1, 2, 3, and 5 is that the Recorder erred in imposing vicarious liability because Risk Solutions and its employees were in fact true independent contractors providing specialist services pursuant to a contract. It is contended that the Recorder failed to give adequate regard to the importance of this contractual relationship and the commercial reality of engaging an independent contractor. The Appellant argues that BXB is not the leading authority on vicarious liability in this context and should be read in the light of other relevant Supreme Court authority that defines the scope of vicarious responsibility and confirms the inability to apply it to true independent contractors, specifically citing Woodland, Barclays Bank, and Cox. In the circumstances of this case the Recorder failed, it was argued, to accord the Agreement the primacy it deserved in answering the threshold question as to whether Risk Solutions were independent contractors and placed too much weight on a series of factors which were only applicable to situations in which the true nature of the relationship was either uncommercial or opaque.[65]The Recorder appears to have focused on factors such as JDW being responsible for counting hours, the integral nature of the work, control over uniform, the door staff being part of an established team, JDW's power to remove staff, and the door staff fitting into the pub's hierarchy, in finding a relationship akin to employment. He viewed the contract for services as "merely one of a number of features".[66]As far as counting hours was concerned this reflected an express agreement in Schedule 2 to the Agreement:
“The parties agree that the ‘Trinity System’ shall be used for recording the number of hours worked by security staff and for payment of the service charges.”
[67]As far as integration and working as a team were concerned, I consider that the proper approach to testing the strength of these factors would have been to have asked how the contract for services could realistically have been performed without the degree of interaction between the door supervisors and the JDW staff that in fact took place. The door supervisors were not there on every night that the pub was open but when they were they were interacting with the same members of the public as were the JDW staff and in the same building. The Agreement provided that it was for Risk Solution to determine the number of door supervisors required. The head doorman took independent decisions about the deployment of his staff and exercised independent discretion in relation to entry to the premises. The fact that there was periodic liaison with the pub manager strikes me as neither unusual nor a significant factor in assessment of whether or not Risk Solutions was acting as an independent contractor.[68]As far as hierarchy was concerned, although this was the subject of much cross examination the answers obtained appear to me to have come nowhere near any concession or compelling evidence that the door supervisors fitted into the chain of command such that they were effectively employed by JDW; indeed, that proposition was explicitly put and explicitly rejected. The Recorder referred to Mr Latham’s evidence on the point being clear. It was: “Q. Now, we can see here the record of the claimant’s injury, it is the one that is at the time log of 12.40, number of people refused one, and it says intox male restrained, tried to assault DS, that means door staff, does it not? A. Yes. Q. And then the next box, search log, they are reporting how many searches they have performed to the duty manager, are they not? A. Yes, that's correct. Q. Does this not show very clearly that the door staff sat in a hierarchy below the duty manager? A. They were - they’re an external company that work for us. They - we hired them to look after the door for us. Q. So your answer to my question— MR RECORDER. SHEPHERD: Just a second. Mr Latham. A. Yes. Q. Keep your voice up — A. Sorry. Q. —so that 1 can hear what you are saying, if that is OK. A. Yes. Q. Thank you very much. MS MOSES: Shall I ask the question again? MR RECORDER SHEPHERD: Yes. MS MOSES: Does this document not show that the door staff sat in a hierarchy beneath the duty manager? A. No, it’s separate. We've got, like I said before, we’ve got the JDW hierarchy and then they’re an external company that we’ve hired to run the door. Q. So your answer to my question is no, that is not the legal position, is that what you are saying? A. I guess so, yes. Q. But it was the position on the ground, was it not? A. I don’t understand what you mean by that. Q. It was what happened day in day out at Wetherspoon’s on Saturdays, Fridays, Saturdays and Mondays, when you had the door security staff? A. Sorry, it’s the position - you’re saying it’s the position that we hire the door staff in those particular days, that's correct. Q. No, we are speaking at cross purposes, I think. MR RECORDER SHEPHERD: I think counsel is still asking you about the hierarchy. A. Right. Q. And I think what is being suggested to you is that there is a distinction between the legal position and the position in reality, so 1 think that is what counsel meant when she said, ‘on the ground’. So that 1 think is the distinction that the question is getting at. So, I am going to ask counsel to put the question again, and then if I could ask you to answer it. MS MOSES: Thank you, your Honour. Benefitting from the Judge’s helpful summary of my question. 1 put. I suggested to you that the door logbook shows that bar staff sat under a hierarchy with the duty manager, your answer was — MR RECORDER SHEPHERD: No, not bar staff, door staff. MS MOSES: Door staff, forgive me, thank you, your Honour. 1 am going to start again. MR RECORDER SHEPHERD: Yes. MS MOSES: So that it is as clear as it can. 1 put to you that the door logbook shows that door staff sit under a hierarchy with the duty manager, and your answer to that was no. that is not the legal position. Was it the position day-to-day in the pub though? A. They’re on a separate, they have a separate hierarchy and report back to us, and we work with them, but they’re not - they’re not within our hierarchy, as you say. Q. So you say they have a separate hierarchy, do you mean separate from the bar staff, for example? A. Yes. Q. But are not the bar and kitchen staff separate in exactly the same way? A. They’re still part of JDW. I can go down — Q. But again, we are talking about the legal position, are we not? If you ignore the legal position, and you think only about the situation day to day in the pub. is there any difference, and, if so, what is it, between the separation of bar and kitchen, and the separation of door and bar? A. Kitchen staff are employed exactly the same as bar staff, they’re employees of JDW, go through the same process of hiring them, like we do with the bar. Door staff are not part of the company. Q. So your answer to my question— Q. Keep your voice up — MS MOSES: Shall I ask the question again? Q. But it was the position on the ground, was it not? Q. But are not the bar and kitchen staff separate in exactly the same way?

A. They’re still part of JDW. I can go down —

[69]The reference in this passage to a “log” was to the “Door Security Supervisors Log” which was filled in on each day that the door supervisors were on duty and then countersigned by the duty manager at the end of the shift. The Recorder regarded this as reinforcing his conclusion that the head doorman effectively “reported in” to the duty manager of the pub and as such “clearly fitted into the existing hierarchy.” However, there was no evidence, from the log or otherwise, to indicate that there was any reporting to the duty manager in real time. The matters which are set out as requiring completion reflect the principal services which Risk Solution’s employees were required to perform under Schedule 1 to the agreement and the express contractual requirement that:
“...at the time of departure from the premises, he ensures that the designated log sheet is completed, and in particular that any serious incidents (including ejection of customers and barring of customers) are entered.”
[70]Again, I find it difficult to see how a record keeping requirement, explicitly provided for in a contract between two separate businesses can be recruited to the argument that there was a relationship akin to employment. Considerable caution needs to be exercised in elevating factors which are inherent in providing a particular service or identified by the parties as necessary into features which justify the imposition of vicarious liability for the employees of a separate business.[71]The Claimant relied on Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18 where vicarious liability was imposed on a nightclub operator for the actions of a doorman employed by a security firm. While 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 [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”
[72]That led to a finding at first instance that the nightclub was the “temporary deemed employer” in accordance with the principles laid down in the well-known case of Mersey Docks Harbour Board v Coggins and Griffith [1947] AC 1.[73]Since the decision in Hawley, the law of vicarious liability has been further developed and clarified by the Supreme Court, particularly in relation to the first stage of the inquiry: the nature of the relationship between the defendant and the tortfeasor. The contrast between the approach in Hawley and the issues in the present case, particularly following Barclays Bank, is significant. Hawley focused heavily on the extent of control and the transfer of responsibility from the general employer to the temporary employer to conclude that a deemed employment relationship arose for vicarious liability purposes. While control remains a relevant factor in the modern Stage 1 "akin to employment" test, the clarification in Barclays Bank requires a court first to determine whether the relationship is genuinely one with a "true independent contractor" carrying on their own business. If it is, vicarious liability does not arise, and the analysis of factors for relationships "akin to employment" becomes unnecessary.[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 the Appellant'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.[76]Many businesses engaging independent security firms could be expected to specify requirements regarding attire and hours of work and might reserve the right to request the removal or replacement of specific personnel for good reason, as was the case here. The fact that security is integral to the operation of a pub or that the security staff have to co-operate with other staff does not transform the relationship with an external security provider into one akin to employment; it simply explains why the service is required and how is it necessarily to be provided. The Recorder's findings, when viewed in the context of a contract for specialist security services, do not, in my view, demonstrate that Risk Solutions was not carrying on its own independent business or that the relationship was sufficiently akin to employment to displace the general principle that a company is not vicariously liable for the torts of an independent contractor.[77]The contract between Wetherspoons and Risk Solutions was a contract for services, not of service. The Security Services Agreement explicitly stated that Risk Solutions retained control over its employees, and there was no evidence that Wetherspoons had direct control over their actions. The control that was identified consisted in setting standards for the service which was to be supplied. There was an obvious commercial justification for that, indeed had JDW not done so it would have courted the risk of direct liability by failing to select a competent contractor and identifying standards against which competence could continue to be measured.[78]The employment relationship was between Risk Solutions and the door supervisors. Risk Solutions maintained responsibility for hiring, training, disciplining, and supervising its employees. Wetherspoons had no authority over how they went about their operations other than its contractual entitlement to hold them to the services required, and standards set, under the Agreement. That reinforces the conclusion that Risk Solutions was an independent contractor providing a specialist security service. For the reasons set out above, I conclude that the Recorder erred in finding JDW vicariously liable for the actions of the door staff. The evidence, viewed in light of the established legal principles concerning independent contractors, does not support a finding that the relationship was akin to employment. The factors relied upon by the Recorder were features of a standard commercial arrangement for the provision of specialist services by an independent contractor.[79]These conclusions would also be fatal to any attempt to analyse the relationship as giving rise to dual vicarious liability or temporary deemed or transferred employment.[80]The appeal is therefore allowed on the issues of vicarious liability (Grounds 1-3 and 5). The trial judge’s factual finding regarding future revision surgery (Ground 6) remains undisturbed. END

Cited in 1 later judgment