Non-delegable duties

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[1] A non-delegable duty is a duty of care owed towards a group of people which cannot be assigned to someone else. This means that when one owes a non-delegable duty towards another, he has a duty not only to take reasonable care himself, but ensure that others take reasonable care (since he cannot discharge his duty by 'delegating' or transferring it to others).[2]

  • As a result, a defendant who owes a non-delegable duty will be liable for the wrongdoing of others even if they are independent contractors.

In order for a defendant to owe a non-delegable duty, the following requirements must be satisfied:[3]

  1. Control/responsibility - the defendant must have had some control over the plaintiff or the plaintiff's property.
  2. Vulnerability - the defendant must have been unable to protect himself and was forced to rely on the defendant to ensure that care had been taken.
  3. Criminal conduct is exempted - the defendant will not be liable for harm caused by someone else's criminal conduct.[4]

If the conditions are complied with, the defendant will owe a non-delegable duty and therefore be concurrently liable for the negligence of another.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 635-647 [15.115-15.140];.

Requirements

A non-delegable duty arises when the defendant has some sort of responsibility over the defendants. Examples of such relationships include:

  • Employer/employee.[5]
  • Hospital/patient.
  • School/pupil.[6]

The principles mentioned about were primarily derived from the prolific case Burnie Port Authority v General Jones P/L:

  • "[T]he nature of the relationship of proximity gives rise to a duty of care of a special and 'more stringent' kind, namely a 'duty to ensure that reasonable care is taken'."[7]
  • "It will be convenient to refer to that common element as 'the central element of control'. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person."[8]
  • An example of such a relationship of control/vulnerability is where a person is in control of the premises and who has taken advantage of that control to introduce thereon a dangerous substance.
  • A dangerous activity/substance can be characterised as one in which the probability and magnitude of the risk were high enough to make a reasonable person exercise special care.

Criminal conduct

There is a debate whether a person who owes a non-delegable duty is also liable for the intentional or criminal wrongdoing of another. The majority in New South Wales v Lepore held that it does not, but the justices were largely divided in their opinions:

  • However, even a non-delegable duty is not a duty to "keep workers free from all harm",[9] but merely take/ensure reasonable care.
    • "A responsibility to take reasonable care for the safety of another, or a responsibility to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm."[10]
  • Intentional/criminal conduct is a bit of a different matter. A non-delegable duty does not extend to a duty to prevent intentional or criminal wrongdoing.
    • "Furthermore, although deliberately and criminally inflicting injury on another person involves a failure to take care of that person, it involves more."[11]
    • "Intentional wrongdoing, especially intentional criminality, introduces a factor of legal relevance beyond a mere failure to take care."[12]
  • "The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad, and the responsibility with which it fixes school authorities is too demanding."[13]

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, pp. 609 [15.20]; 634-5 [15.115]
  2. Burnie Port Authority v General Jones P/L, (1994) 179 CLR 520, 550; New South Wales v Lepore (2003) 212 CLR 511, 528, 530
  3. Burnie Port Authority v General Jones P/L (1994) 179 CLR 520, 551
  4. (2003) 212 CLR 511, 533
  5. Kondis v State Transport Authority (1984) 154 CLR 672
  6. New South Wales v Lepore (2003) 212 CLR 511
  7. (1994) 179 CLR 520, 550
  8. (1994) 179 CLR 520, 551
  9. (2003) 212 CLR 511, 529
  10. (2003) 212 CLR 511, 531
  11. (2003) 212 CLR 511, 531-2
  12. (2003) 212 CLR 511, 532
  13. (2003) 212 CLR 511, 533
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