TORTS SUMMARY WEEK 10

NON - DELEGABLE DUTY OF CARE

S (Superior/Principal) Vicarious Liability (Employment) W Harm (Contractor) Non- delegable duty (Relationship?) V (Victim) / eg. Employee Occurs where: V is Employee of S Harm is due to Carelessness In hospitals with patient injury Schools Pupils Occupier / dangerous activities Prison Authorities Prisoners MAIN QUESTION in cases of non-delegable duty is as to the Relationship between S and V, and whether S owes duty of care to person in Vs situation. (cf. Vicarious Liability Relationship is one of employee/employer)

Traditional rule accepted: No vicarious liability for actions of contractors Sweeney v Boylan Nominees [2006] HCA 19 1/2 Some EXCEPTIONS exist: - Specific situations exist where courts have recognised a Non-Delegable duty of care where liability may be imposed for actions of contractors. History of NDD: NSW v Lepore [2003] HCA 4 - the duties [responsibility] owed to others the performance of which cannot be discharged by delegation. - A duty of Reasonable care (ie. The content of the duty still needs to be examined, this is duty of reasonable care not one of Strict Liability) MUST BE some form of Carelessness / Failure of Due Care 3

TORTS SUMMARY WEEK 10 NDD is not a separate Tort action: only recognised as a principle of liability in relation to another tort. 4

TORTS SUMMARY WEEK 10 SITUATIONS WHERE NDD IS RECOGNISED: 1) Actions of Contractor injuring Principals Employee Kondis v State Transport Authority (1984) 154 CLR 672 4 Employer has duty to provide safe working environment; cannot delegate this duty to a contractor. Also applies to LABOUR HIRE or LOANED OUT workers. White v Malco Engineering Pty Ltd [1999] NSWSC 1055 4 Whilst there was no personal carelessness of Skilled Engineering; they still owed a non-delegable duty of care as employer (citing Kondis, re: safe system of work) Thomas v Sydney Training & Employment Ltd [2002] NSWSC 970 5 ST & E (Thomas employer) had a non-delegable duty of care to Thomas, whilst placed under supervision of another company. Injury to a Labour Hire worker - DUTY of a HOST ** Exception Extension to Principles of NDD: ONLY applies when labour hire employee has been integrated into the workforce. See TNT Australia Pty Ltd v Christie [2003] NSWCA 47 5 TNT were liable to injured labour-hire worker, due to carelessness of contractor. Plaintiff was in an identical position to that of the four TNT employees with whom he worked Relationship indistinguishable from that of employee and employer Relatively unskilled labourer Nationwide News Pty Ltd v Naidu & Anor [2007] NSWCA 377 5 Naidus employer ISS careless but not in breach of NDD because had no personal knowledge of harassment by NN employee No liability based on NDD for commission of Intentional Torts 2) Hospitals in Relation to Health Care - Patients Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 6

TORTS SUMMARY WEEK 10 Hospital owes a NDD duty of care to its patients in relation to health care it provides Whether surgeon is employee or contractor is irrelevant However: Type of undertaking is relevant Not Liable if Hospital premises merely used as a venue, for outsourced surgeon. Negligence of surgeon was outside specific undertaking of hospital. 3) Prison Authorities Prisoners NDD of care applies to Prisoners in an institution. 7 S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549 (5 May 2005) Commonwealth owed NDD to detained illegal immigrants Look at element of control & assumed responsibility for Health Care of detainees. NB: Courts Reluctant to extend the limits of NDD of care.

3) Schools in relation to Care of Students Commonwealth of Australia v Introvigne (1982) 150 CLR 258 8 School established by Cth, operated by State of NSW. Student injured in school grounds. Commonwealth in breach of NDD. Duty of care of a school authority is non-delegable because of the special relationship between school authorities and students.

4) Occupiers Liability cases Extent of liability of occupier of premises now a matter of doubt since High Court assimilated the special rules of occupiers liability into general law of negligence, see Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 8 [A]ll that is necessary is to determine the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. Kondis v State Transport Authority (1984) 154 CLR 672 8 it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge.

TORTS SUMMARY WEEK 10

Jones v Bartlett [2000] HCA 56 9 Landlord could satisfy their duty of care to inspect premises (before letting) by engaging competent contractor. HoytsPty Ltd v Burns [2003] HCA 61 9 Higher standard of care owed to contractual entrant (eg cinema) than owed under general law of negligence even where failure to exercise due care has been by contractor.

TORTS SUMMARY WEEK 10 5) Dangerous Activities (Chemicals/ Fire etc) Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 9 Authority liable for actions of contractor. a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another that duty of care extends to ensuring that such care is taken. Relationship of proximity giving rise to non-delegable duty is marked by dependence or vulnerability. Is also characterised by a central element of control where D brings something dangerous onto property Rylands and Fletcher rule subsumed into negligence by the HCA in this case. What is a Dangerous Activity? Damage to Land (structural damage) Dalton v Angus & Co (1881) 6 App Cas 740 10 Undermining support for land, defendant liable for carelessness of contractors. Faulty Rope/Maintaining Equipment on training course Hall v Adventure Training Systems [2007] [2007] NSWSC 817 11 D owed a duty to ensure that reasonable care was taken by subcontractor because of dangerous nature of the activities to be carried out. The nature of the work required left participants in highly vulnerable position if not done properly. Overturned by CA not convincingly no appeal to HC as P received compensation from another party. Guidelines for Dangerous 10 Corkhill, A. Dangerous substances and activities in the context of a non-delegable duty of care (2007) 15 Torts Law Journal 233, 261. Magnitude of the foreseeable risk of some harm from the nature of the activity itself; Gravity of the possible harm if the risk eventuatesd; Whether or not the substance is commonly used or the activity is ordinarily engaged in; inappropriateness of the substance or activity to the place where used or carried on; Value to the community of the substance or activity weighed up against its danger.

TORTS SUMMARY WEEK 10 Not Dangerous 10 Erecting Scaffolding: Complete Scaffolding Services v Adelaide Brighton Cement [2001] SASC 199. Crowd Surfing: Newcastle Entertainment Security v Simpson (1999) Aust Torts Rep 81-528. 6) Liability of a Road Authority Leichhardt Municipal Council v Montgomery [2007] HCA 6 13 Unanimous decision Roads Authority does not have a NDD of care to members of the public, injured by carelessness of contractors. Kirby J: Guidance for new cases of NDD (1) creation of a substantial risk due to the enterprise carried out by the defendant, coupled with (2) assumption of responsbility toward the claimant; (3) (these factors usually only being found where the plaintiff is particularly "vulnerable"); and (4) Usually there will be a clear reason for imposition of a positive duty to take care for the safety of the claimant. (See paras [117]-[120]) Here the road works were said not to be especially risky and members of public not particularly vulnerable, unlike established categories for NDD patients/employees/pupils/prisoners.

7) Non-Delegable Duties and Intentional Wrongs NSW v Lepore [2003] HCA 4 15 Question for the HCA - can breach of NDD be committed by an intentional wrongful act (here the alleged sexual assault of a student by a teacher) Kirby J declined to rule as teacher was an employee and NDD should not have been an issue, should have been covered by Vicarious Liability Majority held that there can be no breach of a non-delegable duty by an intentional wrongful act.

8) Collateral Negligence 16 Employer only vicariously liable for wrongs by employee in the course of employment

TORTS SUMMARY WEEK 10 Is it similar for negligence by contractor where principal has a non-delegable duty? It seems so, but precise scope of limitation unclear. Limitation is sometimes stated that principal will not be liable for collateral negligence of contractor. Defining limit difficult, concept criticised for lack of clarity, limits of notion unexplored.

TORTS SUMMARY WEEK 10 The Impact of s 5Q, Civil Liability Act 2002 17
5Q Liability based on non-delegable duty (1) 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. (2) 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.

the section does not apply to every action in tort s 3B specifically provides for a number of actions where the Act will not apply; including intentional torts (including sexual assault), actions relating to smoking, motor accident cases, and in particular actions by an employee against an employer for a workplace injury. s 5Q(2) is to clarify that while s 5A says that Part 1A only applies to negligence, in fact s 5Q will also apply to other tort actions [eg breach of statutory duty] purpose said to overcome problems that would arise should other recommendations on limitation of damages etc be avoided by people claiming under a non-delegable duty of care rather than on the basis of vicarious liability. Possible Difference duty of a hospital for a surgeon o under Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 the nondelegable duty meant hospital not liable where surgeon was simply using hospital facilities o under s5Q hospital now to be treated as vicariously liable for surgeons wrongs, and liability may now extend further.