Vicarious Liability Continues to Attract Judicial Commentary at the Highest Level: Two Recent Cases Worth Knowing About

“The law of vicarious liability is on the move”. So said Lord Phillips in the Christian Brothers case back in 2012. Since 2012, there was a proliferation of case law on the boundaries of the doctrine. I, for one, thought that vicarious liability’s movement had slowed down with the two Supreme Court decisions: Barclays Bank v Various Claimants [2020] UKSC 13 (on stage 1 of the test: a relationship of employment or akin to employment) and WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (on stage 2 of the test: a close connection between the tort and the employment). Vicarious liability finally stopped moving by the authoritative statement of the law in Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15.

However, two new cases have shown that vicarious liability continues to attract judicial commentary on at the highest levels. Both make useful reading, both for demonstrating the application of the tests in differing factual scenarios, and as a good reminder of the legal principles that underpin the doctrine.

On 11 June 2026, the Privy Council handed down judgment in Bethel v Attorney General of the Bahamas [2026] UKPC 26 and on 25 June 2026 the Court of Appeal handed down judgment in Burger v (1) Risk Solutions BG Limited (2) JD Wetherspoon plc [2026] EWCA Civ 804.

Burger – Stage 1: Relationship of employment

On 5 August 2018 Mr Burger was restrained by two bouncers outside a Wetherspoons pub. He was restrained with such force that he suffered a dislocated hip, emergency surgery and a three-night hospital stay. The bouncers were employees of Risk Solutions BG Limited which had been engaged by Wetherspoons. Mr Burger alleged that Wetherspoons were vicariously liable for the bouncers’ conduct (Risk Solutions having gone into liquidation).

At first instance, Mr Burger was successful. The Recorder held that Wetherspoons were vicariously liable for the actions of the bouncers because the relationship was akin to employment. In short, the Recorder focussed on control: “the security staff clearly fitted into the existing hierarchy … with the head doorman effectively reporting in to the duty manager of the pub.”

On first appeal to the High Court, Sweeting J allowed the appeal and found that the Recorder had erred in finding that Wetherspoons were vicariously liable for the actions of the bouncers. He found that the court must first determine whether the relation is genuinely one with a “true independent contractor” carrying on their own business.

At [47] and [48] the Court of Appeal highlighted that the ‘akin to employment’ expansion of the stage 1 test does not undermine the “traditional position” that there is no vicarious liability where the tortfeasor is a true independent contractor. An independent contractor is someone who works for themselves. If it is clear that the tortfeasor is carrying on their own business, there is no need to consider the five factors identified in the Christian Brothers case. In this case, the Court held that the tort was carried out by the employee of an independent contractor. The Court of Appeal held that the defendant could be vicariously liable for a tort committed by an employee of an independent contractor where there had been “effectively and substantially a transfer of control and responsibility” to the defendant. However, the facts as found by the Record would not have sustained the conclusion that Wetherspoons was to be regarded as the door supervisor’s ‘temporary deemed employer’. There was no evidence that Wetherspoons paid the door supervisors directly. They were paid via Risk Solutions, who were an independent contractor.

Overall, the Court of Appeal allowed the appeal. Newey LJ found in summary that the first instance judge ought to have considered whether Risk Solutions was a true independent contractor of Wetherspoons, to have found that it was, and thereafter to have concluded that the circumstances were not such as to make Wetherspoons liable for an employee of Risk Solutions.

Bethel – Stage 2: The “close connection” test

On 13 December 2013 the police raided a bar in The Bahamas and arrested the Claimant. After being interviewed by the police, she was kept at a detention centre over the weekend. She was then handed over to the custody of a senior immigration officer, Norman Bastian. Bastian drove the Claimant to a car mechanic, to the Claimant’s home, and then to KFC. He took her to his office where he interviewed her, before driving her to a petrol station and to various establishments to buy alcohol and finally to his home. Whilst at his home, Bastian raped the Claimant on two occasions. He finally took her home where she reported him to the police.

The Claimant lost at first instance. The Judge found that The Bahamas was not liable for Bastian’s actions because, “it cannot be said that taking Mrs Bethel to his home and sexually assaulting her was within the course of his employment and/or sufficiently close to make it right and just for the Immigration Authorities to be held liable under the principle of social justice. Shortly put, Mr Bastian was on a frolic of his own when he took Mrs Bethel to his home having deliberately and consciously abandoned his post and his duties.”

The Court of Appeal allowed the Claimant’s appeal. It found that Bastian had only ever had custody of the Claimant in his capacity as an immigration officer. There was no independent relationship or friendship separate from that of his employment as an immigration officer. The Court of Appeal concluded that Bastian’s actions both in detaining the Claimant and in sexually assaulting her were sufficiently closely connected to the tort to satisfy the second stage of the test.

The Privy Council agreed with that assessment. It cited BXB as the most recent statement of the law of vicarious liability. The Privy Council found the “close connection” test (i.e. the second stage) was “clearly satisfied”. Bastian had the power to detain people as an immigration officer. He was purporting to exercise that power whilst he took Mrs Bethel to his home and sexually assaulted her. Her impression was that she was still under arrest. Bastian had a duty of care to keep Mrs Bethel safe whilst in his care. In raping her, he was directly in breach of that duty of care. Moreover, there was an unbroken sequence of events from his taking her into his custody and the sexual assault. The case was distinguishable from BXB where the relationship was built up between the victim and the tortfeasor, rather than being an abuse of the tortfeasor’s position as an Elder of the congregation. Here, the only relationship was due to the employment and the rape was carried out whilst Bastian purported to carry out his duties. Finally, the Privy Council approved the BXB formulation of the second limb of the test: was the wrongful conduct “fairly and properly regarded as done by the tortfeasor while acting in the course of the tortfeasor’s employment (or quasi-employment).”

 Comment

Both of these cases demonstrate a useful application of the vicarious liability test in a range of factual circumstances. In my view, both also serve to demonstrate that the assessment of vicarious liability will always require a close assessment of the factual circumstances underpinning the tortious conduct. Burger makes clear that there has been very much a return to orthodoxy in considering whether a relationship is ‘akin to employment’ or instead ‘true’ independent contractor status. Lawyers should consider very carefully whether they are able to make out Stage 1 of the test in this new world. Bethel is a useful application of Stage 2 of the test. The claim was successful because there was no extrinsic relationship between Mrs Bethel and Bastian. Had there been, the result may not have been the same.

The boundaries of vicarious liability are becoming increasingly clear, but there will, I am sure, be further appeals on what appears to be a doctrine that will never quite stand still.