LAWS1003A Lecture Notes - Lecture 7: Nsw Law Reports, Municipality Of Leichhardt, William Gummow
2 Jul 2018
School
Department
Course
Professor
Non-delegable Duty:
Non-delegable duty refers to liability being imposed for actions of a contractor. Whilst
similar to vicarious liability in result, it is conceptually different; Vicarious liability is
determined by the relationship between S and W (must be an employee), in order to
determine who is liable. In cases of non-delegable duty, the case is conducted with the
assumption that the person who caused the harm directly is an independent contractor who
acted under the instructions of the company contracted to, and whether this company owes
a duty of care to the injured party.
a) History of the Non-delegable duty
Chief Justice Gleeson, in NSW v Lepore [2003] HCA 4 at [20] referred to:
In summary:
1. Lord Blackburn1: a duty of care cannot be escaped by delegating it to a contractor.
2. Lord Wright2: this duty is personal, and includes the provision of competent staff, adequate
material and a proper system of effective supervision.
3. Lord Thankerton3: these duties cannot be delegated, “the master cannot divest himself of
responsibility by entrusting their performance to others.”
Justice Kirby in Lepore:
“Non-delegable nature of the duty was not designed…to expand the content of the duty
imposed upon the superior party to the relationship, so as to enlarge that duty into one of
strict liability or insurance. It was simply a device to bring home liability in instances that
would otherwise have fallen outside the recognised categories of vicarious liability”
Important to distinguish content of duty (often reasonable care, if negligence claim)
from question of who has been delegated to perform the duty; doctrine of NDD will
be from the point of view of the duty-holder to be strict liability, but in truth for a
breach of duty in negligence, it needs to be established a failure of due care by
somebody (whose actions the principle will be held responsible).
oIssues on contrasted meanings of the word ‘personal’.
1 Dalton v Angus (1881) 6 App Cas 740 at 829.
2 Wilsons and Clyde Coal Co v English [1938] AC 57 at 84.
3 [1938] AC 57 at 72, adopting statement of Lord Justice-Clerk in Bain v Fife Coal Co [1935] SC 681 at 693.
find more resources at oneclass.com
find more resources at oneclass.com
Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 supports the view
that NDD imposes liability for failure of due care by someone else, not simply for
failure to produce a particular state of affairs.
Lord Wright says the duty of an employer to provide a safe system of work as
absolute in Wilsons at 78.
SO, MASTER IS LIABLE FOR CONTRACTORS NEGLIGENCE IN ISSUES OF DUTY OF CARE.
b) Actions of contractor injuring principal’s employee
Duty of employer in law of negligence to provide a safe working environment for
his/her employees is non-delegable and cannot be satisfied by delegation to a
contractor: Kondis v State Transport Authority (1984) 154 CLR 672.
oThis means that an employer whose employee is injured by the
carelessness of a contractor, will be held strictly liable for the harm caused
by the contractor. This seems identical to the law in England.
oThis applies even if worker is loaned out such as labour hire firms:
White v Malco Engineering Pty Ltd [1999] NSWSC 1055, where
White was employed by Skilled Engineering and loaned out as a
forklift driver to Malco: skilled still owed a duty of care as the
employer:
[467] Skilled hired the plaintiff’s labour to Malco but Skilled could
not thereby divest itself of its obligations to the plaintiff as his
employer. The duties of an employer are “non-delegable”, in the
sense that performance of the duties cannot be delegated by the
employer to a contractor, on the footing that delegation to a
competent contractor is a sufficient performance of the duties. The
employer is liable for any negligence on part of contractor in not
taking reasonable care to provide a safe system of work or safe
equipment or the employer’s employee: Kondis v State of Transport
Authority (1984) 154 CLR 672.
Duty of a host to a labour worker is non-delegable: TNT Australia Pty Ltd v Christie
[2003] NSWCA 47, in which Mason P held that TNT were liable to an injured labour-
hire worker because the contractor they had engaged to maintain machinery had
done so carelessly.
Interaction of VL and NDD demonstrated in Nationwide News Pty Ltd v Naidu &
Anor; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377.
oNaidu employed by ISS, placed to work at NN under supervision of head of
security for NN, Mr Chaloner. Chaloner bullied and humiliated Naidu- was
ISS or NN liable for his harm, or both.
ISS were not found liable as nobody had knowledge of the
harassment. It would seem that this was odd, as Naidu’s employer
have a non-delegable duty of care, so would be held liable for
carelessness by NN.
find more resources at oneclass.com
find more resources at oneclass.com
But, NN were found liable because:
Chaloner acted as the company (head supervisor), hence it
was as if NN committed the tort ‘directly’.
Because Chaloner was an employee of NN, and they were
vicariously liable for him.
Mason J in Kondis at 680: non-delegable duty to provide adequate plant and
equipment was not satisfied by merely engaging a competent person to perform
some service. This was held also in Gibbs v Haoma Mining NL [No 2] [2011] WADC
148. Neither can “casual negligence” be a defence.
Beuermann (2044) suggests the doctrine of NDD in the workplace has been
developed to deal with the risk of abuse of authority.
In short, the question of liability lies on whether the issue has been “placed under the authority” of
another company or not. So, a truck driver sent to make deliveries at different sites (DIB v Cole),
there would be no NDD liability of the driver is injured due to condition of premises where deliveries
are made, as the driver has in no sense been “entrusted to” or placed under the authority of the
occupier of these premises. On the other hand, it would allow liability for a worker who had been
sent off-site and told to work under the authority of a contractor or other entity.
c) Other established categories where a non-delegable duty will apply:
i) Hospital in relation to hospital care
Hospital owes a non-delegable duty of care to its patients in relation to health care it
undertakes to provide.4
So, if a surgeon is negligent to a patient, then hospital is liable even if
surgeon is an employee or contractor. In Ellis, hospital not liable- p16.
Elliot v Bickerstaff [1999] NSWCA 453- surgeon himself did not have non-
delegable duty of care to his patient, when theatre staff didn’t count
sponges and left some in body.
UK also supports this. See page 16 for details.
ii) Prison Authorities regarding prisoners
Authority that NDD of care also applies in relation to prisoners in an institution (flowing from
the high degree of control exercised by authorities- Howard v Jarvis (1958) 98 CLR 177.
In S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA
549, it was held that the Commonwealth Government owed a non-delegable duty of care to
persons detained as illegal immigrants see para [209] per Finn J on page 17 halfway down.
iii). School in relation to care of students
Commonwealth of Australia v Introvigne (1982) 150 CLR 258: Commonwealth had
contracted with the State of NSW to provide teachers for school in the ACT. A student was
4 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Non-delegable duty refers to liability being imposed for actions of a contractor. Whilst similar to vicarious liability in result, it is conceptually different; vicarious liability is determined by the relationship between s and w (must be an employee), in order to determine who is liable. Chief justice gleeson, in nsw v lepore [2003] hca 4 at [20] referred to: Lord blackburn1: a duty of care cannot be escaped by delegating it to a contractor. Lord wright2: this duty is personal, and includes the provision of competent staff, adequate material and a proper system of effective supervision. Lord thankerton3: these duties cannot be delegated, the master cannot divest himself of responsibility by entrusting their performance to others. Non-delegable nature of the duty was not designed to expand the content of the duty imposed upon the superior party to the relationship, so as to enlarge that duty into one of strict liability or insurance.
