An insured will be vicariously liable for the acts of an employee during that person’s employment. In many cases this does not lead to unexpected results: a law firm, for example, would expect to be vicariously liable for a negligent piece of drafting by one of its solicitors. There will be occasions, however, when an insured is held liable for the unexpected wrongful acts of employees or quasi-employees which, on their face, are beyond the scope of any contract of employment or retainer.
It is helpful, therefore, that the appellate courts have recently explained when and how the doctrine of vicarious liability is to be applied in these unexpected scenarios.
Two stage test used for employees’ extreme acts - Bethel v Attorney General of the Bahamas [2026] UKPC 26
In the first of these cases, the Supreme Court, in its role as Privy Council, considered a case referred from the Bahamas. It was accepted by all parties that the law on vicarious liability was the same in Bermuda as in England & Wales.
In this case, the Bahamian authorities were found vicariously liable for the criminal acts of an immigration officer who raped and falsely imprisoned Mrs. Bethel. The brief facts of the case were that Mrs. Bethel was detained for an alleged immigration offence. In due course, she was placed into the personal custody of Officer B, ostensibly so that he could drive her to her address to confirm her evidence about her residence. Instead, B drove Mrs. Bethel to various unrelated locations including restaurants and liquor stores. He then took her to his home and raped her. Mrs. Bethel was illegally detained by B overnight and, when eventually released, went to the police.
In deciding whether the Bahamian authorities were vicariously liable for B’s criminal acts, the Privy Council set out a two-stage test:
- Stage 1: Assess whether the relationship between the wrongdoer and defendant is one of employment or akin to one of employment
- Stage 2: Assess: “whether the wrongful conduct was so closely connected with the 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 his employment.”
In this case, there was no question that the stage 1 test was satisfied: B was an employee of the Bahamian immigration service. The area for debate was around the stage 2 test – which the Privy Council also held was satisfied.
It reached that conclusion on the basis that B had power to detain people as part of his employment and purported to be exercising that power during the whole time that he detained and raped Mrs. Bethel. Further, Mrs. Bethel remained under his control and believed she was not free to go and was afraid of him because of his position as an immigration official. Because of his employment, B had a common law duty to keep Mrs. Bethel safe while she was in his custody, but the rapes were directly in breach of that duty. In the words of counsel, B never took off his ‘metaphorical uniform’ in his dealings with Mrs. Bethel, which constituted a seamless sequence of events.
This case demonstrates how the proper application of the two-stage test set out by the Privy Council can mean that employers become vicariously liable for even the most extreme acts of their employees. As the Court noted, even an express prohibition against certain behaviour does not always relieve an employer of vicarious liability.
When the relationship is ‘akin to employment’ - Burger v. JD Wetherspoons [2026] EWCA civ 804
In this subsequent case, the Court of Appeal addressed the issue of when a relationship between defendant and wrongdoer is ‘akin to employment’ and in what circumstances an organisation can be said to be the ‘temporary deemed employer’ of a wrongdoer who is not an actual employee.
Mr. Burger was injured when he was assaulted by door staff at a JDW venue and suffered a significant injury to his hip. The door staff were employed by Risk Solutions BG Ltd which was contracted with JDW to provide security. Risk Solutions went into liquidation with no valid insurance and so Mr. Burger pursued his claim for damages against JDW, alleging that it was vicariously liable for the acts of the door staff. Mr. Burger succeeded with his claim at first instance and was awarded damages of approximately £70,000. JDW won an appeal to the High Court whose decision was, in turn, appealed to the Court of Appeal by Mr. Burger.
The Court of Appeal first considered the nature of the relationship between Risk Solutions and JDW. If Risk Solutions was a truly independent contractor, the door staff whom it employed would not be in a position akin to employees of JDW.
The Court set out several markers for assessing whether an organisation is an independent contractor. These include, whether the work is paid for in money or kind; how integral the work is to the defendant organisation; the extent of the defendant’s control over the tortfeasor in carrying out the work; whether the work is for the defendant’s benefit; what the situation is with regard to appointment and termination and whether there is a ‘hierarchy of seniority’ in which the tortfeasor’s role sits.
Here, Risk Solutions recruited, employed and managed the door staff and supplied them with uniforms and training. It also supplied services to JDW as an independent commercial enterprise with a prospect of profit or loss and freedom to provide the same services to other clients. It did not matter that Risk Solutions was paid by JDW or that the services were carried out for JDW’s benefit or that the services were important to JDW. Consequently, Risk Solutions was an independent contractor and JDW was not vicariously liable for the assault on Mr. Burger. It is understood that Mr. Burger is seeking leave to appeal to the Supreme Court.
This decision is a useful reminder that, although an organisation can be liable for the acts of an individual whom it does not directly employ but with whom it has a relationship ‘akin to employment’, it will not be vicariously liable for the acts of an independent contractor. Consequently, where the alleged wrongdoer is not directly employed by an insured, it is important at the outset to establish the nature of the relationship between the insured and the organisation which does employ the wrongdoer. Only then should one embark on an analysis of whether the insured is the temporary deemed employer of the wrongdoer.
Contact our Global Risks Team for more information.
