Abandoning Non Delegable Duty of Care
While there may be policy factors justifying the retention of a non-fault based liability in certain relationships, the development of non delegable duty of care in a matrix of negligence law distorts the latter, thereby undermining the coherency and consistency of the law.
The principle of non delegable duty of care should be abolished and the appropriate doctrinal basis for a non-fault based liability in certain special relationships should be a true vicarious liability.
It is proposed below to analyse the principle of non delegable duty of care in the context of negligence law.
Then it is intended to examine the relationship between non delegable duty of care, vicarious liability, and strict liability and ultimately to state the reasons justifying a new approach to those situations where non delegable duty of care has been applied
What Relationships raise a Non Delegable Duty of Care
It is useful initially to identify in case law those relationships where a non delegable duty of care is imposed. Such relationships were conveniently listed in the joint judgment of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Burnie Port Authority v General Jones Pty Ltd.[i] They included: “adjoining owners of land in relation to work threatening support of common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and occupier and invitee”.[ii]
The particular policy reasons of dependence and vulnerability underpinning these relationships suggest that further categories may be developed in the courts. As Lord Macmillan rightly observed, in his celebrated dictum in Donoghue v Stevenson, “the categories of negligence are never closed”.[iii]
For instance, arguing analogously from the established categories, a justifiable category might, for example, include adventure tour operators in their duty of care towards participants, where the tour operator’s business is taking participants into extremely dangerous situations (eg lion safaris).
What is Non Delegable Duty of Care
It is unfortunate and misleading that the phrase “non delegable duty of care” has gained currency in the law of tort. It is a misleading phrase since tort law casts a duty of care on persons in certain circumstances and once the duty of care is imposed by the principles of tort law, that person cannot delegate the duty to any other party. The question is simply whether the person who bears the duty of care has fulfilled or breached that duty of care.[iv]
In determining whether or not a person has breached their duty of care, a court applies the universal Atkinian standard of reasonable care in all the circumstances. The question is, has the defendant taken reasonable care or fallen below that standard.
The celebrated version of the test to be applied is that expounded by Lord Atkin in his statement: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”.[v]
If a person cannot delegate and avoid a duty of care cast upon them by the general law of tort, is it possible for that person to delegate the performance of their duty to take reasonable care? The answer is yes. As part of fulfilling a person’s duty of care they may delegate all or part of the performance required to satisfy the test of reasonable care. This delegation may be to a third party who is an independent contractor. As Lord Blackburn stated in Hughes v Percival[vi] in a case of non delegable duty of care with respect to the defendant’s delegation:
“He was at liberty to employ such a third person to fulfil the duty which the law cast on himself but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled”.[vii]
Assuming a person, in fulfillment of their duty of care, delegates all or part of the performance of that duty to an independent contractor, in circumstances where there is not a non delegable duty of care, and the independent contractor is negligent thereby causing injury to a victim, the fundamental question for the court in an action by the victim against the person who delegated, still remains as to whether the latter person has taken reasonable care in all the circumstances. This is the universal standard applied by the common law. However if the court applies to the relationship between victim and delegator, a non delegable duty of care, then the universal standard is bypassed, whereby the standard is not “to take reasonable care” but “to ensure that reasonable care is taken”.
A succinct statement of the higher standard of care imposed by a non delegable duty of care was given in a joint judgment of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd:[viii]
“It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of a special and ‘more stringent’ kind, namely a ‘duty to ensure that reasonable care is taken. [Footnote 69 – See Kondis v State Transport Authority (1984) 154 CLR672 at 686]. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken”.[ix]
For practical purposes, a person subject to a non delegable duty of care, who delegates the performance of that duty to a professional and competent independent contractor and the independent contractor is negligent, then the delegator has breached the duty of care to ensure that reasonable care is taken.
The consequence of the law imposing a non delegable duty of care is that a person can be liable for the negligence of a third party in circumstances where the first person is without fault or blameworthiness. This is not a novel circumstance of tort law having regard to established principles of vicarious liability and strict liability (see below).
For instance, if a hospital, which is subject to a non delegable duty towards patients, engages a competent electrical contractor to do certain wiring in the hospital and the work is performed negligently such that it causes an injury to a patient, it is fanciful to suggest that the hospital, while liable for the negligence, is at fault or blameworthy. As a matter of common sense, the hospital has no expertise in electrical matters and must rely on the services of qualified third parties. The conduct of the hospital is blameless and clearly fulfills the universal standard of reasonable care (but not the higher standard to ensure that reasonable care is taken).
Distorting Negligence Law
The obvious conflict and irony of non delegable duty of care is that it is a doctrine requiring a person to “ensure that reasonable care is taken”.[x] As explained above, such a responsibility imposes no fault liability, yet the historic and underpinning principle of negligence law is fault or delict. This is evident in the universal test of negligence, namely, a failure to take reasonable care.
The principle of non delegable duty of care has been developed in a matrix of negligence law. It has imposed in a fault based tort, a non-fault based standard of care.
If it is justifiable to impose in certain relationships a no-fault liability, it is submitted that to use the vehicle of negligence law and duty of care is to distort and undermine established principles. In special circumstances, where policy justifies a liability in the absence of any fault, it is desirable that the law be both transparent and coherent. Transparency and coherency can be achieved by the law stating that in certain situations, a defendant will be liable for a third party’s negligence, not because the defendant has breached any personal duty of care (such as a non delegable duty), but because the policy of the law is to hold a defendant vicariously liable for the tort of another. Vicarious liability is discussed below.
Vicarious Liability and Non Delegable Duty of Care
Vicarious liability is a policy based principle of the common law imposing on a party, liability for the tort of another. As Lord Sumption (with whom Lords Clarke,Wilson, and Toulson agreed) stated in the United Kingdom Supreme Court:[xi]
“In principle, liability in tort depends upon proof of a personal breach of duty. To that principle, there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other”[xii]
Vicarious liability is different from non delegable duty of care in that it is irrelevant to inquire whether a person or organisation, subject to vicarious liability, has a duty of care or has breached any duty of care. The person or organisation is liable, not for any personal breach of duty, but is liable because someone for whom they are responsible, has committed a tort.
Whereas, non delegable duty of care, developed in a matrix of negligence law, refers to a breach of a personal duty on the part of the person or organisation, to ensure that reasonable care is taken by a third party.
A true vicarious liability also differs from the theory underpinning agency law that the actions of an agent are deemed the actions of the principal. Again it is not relevant to inquire about the actions of a person or organisation charged with a vicarious liability. The latter are simply liable because of their responsibility for the tort or actions of another.
Vicarious liability and non delegable duty of care are alike in that they both impose a strict liability whereby the defendant is liable without personal fault.[xiii]
Civil liability legislation in New South Wales has achieved part of the reform recommended in this article. Section 5Q of the Civil Liability Act 2002 (NSW) is as follows:
5Q Liability based on non-delegable duty
- The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.
- This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A.
Section 5Q is a recognition of the reality underlying non delegable duty of care, namely, that it is vicarious liability masked behind a facade of negligence law. The section has been drafted to achieve clarity, transparency and consistency in legal principle.
The recommendation of this article is that legislative reform should go further than Section 5Q and should abolish the principle of non delegable duty of care, replacing it with a true vicarious liability. This would avoid any further reference to non delegable duty but rather refer only to vicarious liability which is the proper doctrinal basis of a no fault liability for the tort of another.
The reform of the law suggested in this article could also be achieved through judicial pronouncement in the High Court of Australia, but this would have to await an appropriate matter presenting itself for decision in that court.
Not only is the language and terminology of non delegable duty of care misleading, but its development in a matrix of negligence law distorts the latter. It is a non fault duty in a fault based tort.
The transparency and coherency of the law would be served by abolishing non delegable duty of care, and in those special relationships where a defendant, without fault, is to be held responsible for the tort of another, to apply a true vicarious liability.
[i]  HCA para 13
[ii] Ibid at para 36
[iii]  AC 562 at 619
[iv] Woodland v Swimming Teachers Association  UKSC 66 (per Lord Sumption)
[v] Donoghue v Stevenson  AC 562 at 580
[vi] (1883) 8 App Cas 443
[vii] Ibid at 443
[viii]  HCA 13
[ix] Ibid at para 36
[xi] Woodlands v Essex County Council  UKSC 66
[xii] Ibid at para 3
[xiii] Armies v Nottingham Shire County Council  UKSC 60 per Lord Hughes at para 91
*LL.B, LL.M, PhD Barrister-at-Law