Success for Lord Faulks KC and Johnathan Payne in the Court of Appeal in the case of Burger v. (1) JD Wetherspoon Plc and (2) Risk Solutions Ltd [2026]

The case considered the issue of vicarious liability and independent contractors.

Mr Burger was injured by door staff employed by Risk Solutions.  Risk Solutions had been engaged by JDW pursuant to a contract for services to provide door services at a JDW venue.  At first instance Mr Burger argued that the correct test to apply was that set out by Lord Burrows in BXB v Trustees of The Barry Congregation of Jehovah’s Witnesses [2024] AC 567.  The Recorder agreed and applied the test in BXB and found that Risk Solutions were not true independent contractors.  Despite JDW being found liable at first instance Mr Justice Sweeting overturned the liability of JDW to compensate Mr Burger on the basis of vicarious liability.  JDW had engaged a true independent contractor and therefore no liability attached.  Johnathan Payne argued the case at first instance and before Sweeting J.

Mr Burger appealed to the Court of Appeal.  The appeal was heard by Lord Justices Bean, Newey and Jeremy Baker. 

The Court of Appeal rejected Mr Burger’s appeal.  The Court considered that JDW had engaged a true independent contractor.  Further, the Supreme Court whilst acknowledging that the scope of vicarious liability had been extended over various judgments this extension did not extend to those who were real independent contractors as in this case.

This is an important decision for those who engage independent contractors and it explains the approach which should be taken in such circumstances. 

The judgment is available here.