Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Burger and Risk Solutions BG Limited and another, in which the Court of Appeal considered whether the extended form of vicarious liability applying to relationships akin to employment could be relied on to render a pub operator liable for an assault by door supervisors employed by a security contractor. In this case, B was assaulted by two door supervisors outside a pub operated by J, with such force that he dislocated his hip and required emergency surgery and a hospital stay. The door supervisors were employed by an independent security contractor, R, which had been engaged by J to provide security services to the pub. B brought personal injury proceedings against R and J, arguing they were both vicariously liable for the assault which caused his injuries. While the proceedings were ongoing, R went into liquidation and was dissolved. As R had no valid insurance, B's claim proceeded as against J alone. The judge upheld B's claim, holding that he had been assaulted by the door supervisors and that J was vicariously liable for this assault. However, J successfully appealed to the High Court, which overturned the judge's determination. B appealed to the Court of Appeal. The Court of Appeal dismissed B's appeal and held that earlier Supreme Court decisions on vicarious liability, which have expanded vicarious liability to include some relationships that are akin to employment, did not extend to make an end-user client vicariously liable for the actions of true independent contractors who were carrying on their own business. The security contract between J and R was entirely consistent with R carrying on a business of its own as an independent contractor, providing door security services, including to pubs operated otherwise than by J. The fact J paid for its services, and that those services were carried out for J's benefit, made no difference to the basic principle that, where a legal wrong is committed by an independent contractor's employee, the end-user client will not normally be vicariously liable. unless they have become the temporary deemed employer of the wrongdoer by accepting an effective and substantial degree of control and responsibility over them. That temporary employer role was not established in the facts of this case. The Court of Appeal has re-emphasised the traditional approach to vicarious liability. Cases involving relationships akin to employment are likely to be the exception rather than the rule. However, this dispute could likely have been avoided had J ensured that R had valid insurance while it was providing security services to its pubs? This could be achieved via contractual provisions requiring the contractor to provide evidence of public liability insurance. Look out for further episodes in this series to stay up to date on all things HR and employment law related.