Non-delegable duty is like vicarious liability in certain ways. The basis of the concept is that a duty of care held by an organisation cannot be devolved down or delegated to another party in spite of the other party taking certain responsibilities over the plaintiff’s safety. Common sense may dictate that the other party has assumed a duty of care by assuming control and other responsibilities, but the law takes a view that the duty of care held by the party normally responsible is not eliminated. It is established that a non-delegable duty exists in the following relationships:

 

• Hospital and patient,

• School authority and students,

• Occupier and neighbour,

• Employer and employee.

 

In each of these relationships the former party has a duty of care to the latter party which continues to exist in spite of there being other persons involved. To each relationship listed above the following parties have been argued at court to be responsible for the dependent party’s care, but found not to be liable due to non-delegable duty:

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• A doctor working at a hospital,

• A contractor hosting a school excursion,

• A contractor performing renovations for the occupant,

• A manager or contractor acting on behalf of an employer.

 

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Specific Points on Non-Delegable Duty

In Kondis v State Transport Authority[1] a railway worker was injured while doing manual rail maintenance work with a team under the supervision of a foreman. There was a crane hired to the employer by another company, operated by an employee of the hire company. The accident involved a metal rod being dropped on the worker’s back while he was under the crane. The employer argued that the worker was under the care of the supervisor, meaning the employer was not responsible.

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Justice Mason briefly discussed the historical background and difficulties involved in non-delegable duty. He agreed with the trial judge that the employer’s duty of care was not eliminated by the fact that the accident was the fault of an employee of another company because the employee/plaintiff was at all times acting under the control of the employer, and the supervisory staff of the employer failed to take reasonable steps to prevent the accident. Other cases dealing with other situations follow a broadly similar line of reasoning.

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In Burnie Port Authority v General Jones Pty Ltd the law was elucidated with the ruling that the mere fact that a contractor engaged is competent and suitably qualified does not override the non-delegable duty. An important element in Burnie is that the contractor’s work was not supervised by the defendant, and so the defendant had no direct say in how the work was carried out. They exercised trust in the contractor’s expertise to work independently and safely. In spite of maintaining such a distance from the situation, they were held responsible by the court. The position of the law is that whoever has overarching control must exercise such control so as to dispense its duty of care.

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Non delegable duty does NOT apply to intentional wrongdoings such as trespasses, only negligent wrongs.

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The mere fact that one party has a non-delegable duty of care does NOT eliminate the duty of care owed by the contractor. Both principal AND contractor are liable. This law is useful largely where it is necessary to make more pecunious party accountable so that a full sum in damages can be obtained.

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[1] Kondis v State Transport Authority (1984) 154 CLR 672.

[2] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.