text stringlengths 5 5.67k |
|---|
This characterisation of non-delegable duties originated in the law of nuisance, and in a number of seminal judgments of Lord Blackburn in the late nineteenth century. PRE |
It was implicit in the famous judgment of the Exchequer Chamber in Rylands v Fletcher (1866) LR 1 Ex 265, delivered by Blackburn J and subsequently affirmed by the House of Lords (1868) LR 3 HL 330, that the duty of the defendant to prevent the escape of water from his reservoir was non-delegable, for on the facts it w... |
The point became explicit in Dalton v Henry Angus & Co (1881) 6 App Cas 740, in which the House of Lords had to consider the duty of adjoining landowners not to withdraw support from each others land. PRE |
The withdrawal of support had been due to works carried out on the defendants land by an independent contractor. PRE |
Lord Blackburn, who delivered the principal speech on this point, regarded the interposition of an independent contractor as irrelevant, because of the nature of the duty. PRE |
At p 829 he put the point in this way: Ever since Quarman v Burnett (1840) 6 M & W 499 it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. PRE |
So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. PRE |
On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. PRE |
He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v Sittingbourne Railway Co (1861) 6 H & N 488; Pickard v Smith 10 CB (NS) 470; Tarry ... |
Rylands v Fletcher and Dalton v Henry Angus & Co might have been explained by reference to the hazardous character of the operation carried out by the defendants contractor, and sometimes have been, notably by the Court of Appeal in Honeywill and Stein Ltd v Larkin Brothers (Londons Commercial Photographers) Ltd [1934]... |
But it is clear from Lord Blackburns observations that the essential point about them was that there was an antecedent relationship between the parties as neighbouring landowners, from which a positive duty independent of the wrongful act itself could be derived. PRE |
The duty was personal to the defendant, because it attached to him in his capacity as the occupier of the neighbouring land from which the hazard originated. PRE |
All of these features were also present in Hughes v Percival (1883) 8 App Cas 443, which was one of the first cases in which the same principle was applied to a duty of care. PRE |
The parties were neighbouring householders with a party wall. PRE |
A builder working in the defendants house negligently cut into the party wall, causing the partial collapse of both the defendants house and the Plaintiffs house next-door. PRE |
On its facts, therefore, the case had many of the classic features of the cases about non-delegable duties in the law of nuisance, and Lord Blackburn, delivering the leading speech in the Appellate Committee, proceeded by analogy with them. PRE |
He put the matter in this way, at pp 445-446: The first point to be considered is what was the relation in which the defendant stood to the plaintiff. PRE |
It was admitted that they were owners of adjoining houses between which was a party-wall the property of both. PRE |
The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party-wall which was between the plaintiff's house and the defendant's, so that if one fell the other would be damaged. PRE |
The defendant had a right so to utilize the party-wall, for it was his property as well as the plaintiff's; a stranger would not have had such a right. PRE |
But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. PRE |
I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the pa... |
If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. PRE |
He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, ... |
This is the law I think clearly laid down in Pickard v Smith 10 CB (NS) 470, and finally in (1881) Dalton v Angus 6 App Cas 740. PRE |
But in all the cases on the subject there was a duty cast by law on the party who was held liable. PRE |
Assumption of responsibility Ratio |
The duty to which Lord Blackburn was referring would today be regarded as arising from an assumption of responsibility imputed to the defendant by virtue of the special character of his relationship with the claimant. Ratio |
The concept of an assumption of responsibility is usually relevant in the law of negligence as a tool for determining whether a duty of care is owed to protect against a purely economic loss. Ratio |
There is no doubt in this case that the education authority owed a duty of care to its pupils to protect them from injury. Ratio |
But the concept of assumption of responsibility is relevant to determine its scope, whether the potential loss is economic or physical. Ratio |
The circumstances must be such that the defendant can be taken not just to have assumed a positive duty, but to have assumed responsibility for the exercise of due care by any one to whom he may delegate its performance. Ratio |
This is a markedly more onerous obligation. Ratio |
What are the circumstances in which a person may be taken to have assumed it? They have been considered in a number of cases involving injuries sustained by employees, hospital patients, school pupils and invitees, at the hands of persons working for the defendant for whom the defendant was not vicariously liable. Rati... |
There are a number of situations where by virtue of some special relationship the defendant is held to assume positive duties. PRE |
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 is a classic example of a duty of care to perform professional services, arising out of a special relationship equivalent to contract but not contractual: see, in particular Lord Goff of Chieveley at pp 180-181. PRE |
A corresponding relationship may also arise out of a sufficient degree of dependence, even in the absence any reliance, as it did in very different circumstances in Dorset Yacht Company v Home Office [1970] AC 1004 and White v Jones [1995] 2 AC 207, 275 (Lord Browne-Wilkinson). PRE |
It does not, however, follow from the mere existence of a positive duty that it is personal to the defendant so as to make it non- delegable. PRE |
In the nuisance or quasi-nuisance cases, the personal character of the duty results, as I have pointed out, from the fact it arises from the defendants occupation of the land from which the hazard originates. PRE |
In other cases, the personal character of the duty must be derived from something else. PRE |
Both principle and authority suggest that the relevant factors are the vulnerability of the claimant, the existence of a relationship between the claimant and the defendant by virtue of which the latter has a degree of protective custody over him, and the delegation of that custody to another person. PRE |
The employment cases Ratio |
These matters first arose for consideration in the context of the common law duty of an employer to his workforce. PRE |
This was an area in which the courts at an early stage of the development of the law of tort, adopted a protective approach to those who were vulnerable and not in a position to defend their own interests. PRE |
In Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the House of Lords not only held that the employer had a duty to provide a safe system of work, but also that it was (in the modern terminology) non-delegable. PRE |
Liability was not therefore excluded on the ground that the breach was due to the negligence of another employee, for which the employer would not (as the law then stood) have been liable because of the doctrine of common employment. PRE |
The duty was non- delegable because of its personal character. PRE |
Lord Macmillan said at p 75: [The defendant] cannot divest himself of this duty, though he mayand, if it involves technical management and he is not himself technically qualified, mustperform it through the agency of an employee. PRE |
It remains the owner's obligation, and the agent whom the owner appoints to perform it performs it on the owner's behalf. PRE |
The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. PRE |
If the owner's duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible. PRE |
The fullest rationalisation of the principle appears in the speech of Lord Wright. PRE |
Referring to the earlier decision of the House in Lochgelly Iron and Coal Co v Mc Mullan [1934] AC 1, he observed at p 78: This House held that, on the contrary, the statutory duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. PRE |
The same principle, in my opinion, applies to those fundamental obligations of a contract of employment which lie outside the doctrine of common employment, and for the performance of which employers are absolutely responsible. PRE |
Dealing, later in his speech, with the scope of the duty, Lord Wright said at pp 83- 84: The true question is, What is the extent of the duty attaching to the employer? Such a duty is the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save... |
A failure to perform such a duty is the employer's personal negligence. PRE |
This was held to be the case where the duty was statutory, and it is equally so when the duty is one attaching at common law... I think the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, w... |
The principle thus expressed was qualified only by its limitation to those acts of the delegate which were within the scope of the employers personal duty: It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow-servant or a merely temporary failure to... |
(pp 84-5) So far as there was ever any doubt about the application of this principle to the negligence of an independent contractor, it was resolved by the House of Lords in McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906. PRE |
The hospital cases PRE |
In Gold v Essex County Council [1942] 2 KB 293, a voluntary hospital operated by a local authority was held liable for the negligence of a radiographer employed by it. PRE |
The decision was an orthodox application of the doctrine of vicarious liability. PRE |
The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of special skill of a kind which the authority could not reasonable be expected to supervise or control. PRE |
Lord Greene MR, however, considered more broadly the basis of the hospitals liability for the negligence of those through whom it discharged its duty of care to patients, at p 301: the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. PRE |
This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). PRE |
In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. PRE |
Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill. PRE |
It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than can an individual, and it is no answer to say that the obligation is one which on the face of it they could never perform themselves. PRE |
In Cassidy v Ministry of Health [1951] 2 KB 343, Gold v Essex County Council was followed in another case involving employed medical staff. PRE |
The majority of the Court of Appeal (Somervell and Singleton LJJ) were content to treat the matter as an ordinary case of vicarious liability and to leave it at that. PRE |
But Denning LJ considered that the critical factor was not the hospitals relationship with the doctor or surgeon, but its relationship with the patient, arising from its acceptance of the patient for treatment. PRE |
He put the point as follows, at pp. PRE |
362-363: when hospital authorities undertake to treat a patient, and themselves select and appoint and employ the professional men and women who are to give the treatment, then they are responsible for the negligence of those persons in failing to give proper treatment, no matter whether they are doctors, surgeons, nur... |
It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. PRE |
That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient. PRE |
This is a robust assertion, albeit reflecting a minority view, that a hospitals duty of care to patients is personal as well as vicarious, and therefore non-delegable. PRE |
Denning LJ cited in support of his view the classic statements of the principle of non-delegable duty by Lord Blackburn in Dalton v Angus and Hughes v Percival. PRE |
At pp 364-365, he went on to consider the scope of the matters for which the authority was responsible: The truth is that, in cases of negligence, the distinction between a contract of service and a contract for services only becomes of importance when it is sought to make the employer liable, not for a breach of his o... |
He cannot escape the consequences of a breach of his own duty, but he can escape responsibility for collateral or casual acts of negligence if he can show that the negligent person was employed, not under a contract of service but only under a contract for services... These distinctions are, however, of no importance i... |
In Roe v Minister of Health [1954] 2 QB 66, Denning LJ repeated his analysis in Cassidy, but the case was once again decided on other grounds by the other members of the Court of Appeal. PRE |
These dicta have never been adopted as part of the ratio of any English case. PRE |
But the principle which they embody is supported by powerful dicta. PRE |
In particular, Lord Browne-Wilkinson, delivering the leading speech in the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, considered that a hospital authority assumed a personal and not just a vicarious liability for the negligence of medical staff, which might therefore be broken even in a... |
At p 740, he observed: It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). PRE |
They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of the staff is himself in breach of a separate duty of care owed by him to the plaintiff: Gold v Essex County Council [1942] 2 KB 293, 301, per Lord Green[e]; Cassidy v Ministry of... |
Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed directly by the authority to the plaintiff. PRE |
The Australian case-law PRE |
Professor Glanville Williams, who was hostile to the whole notion of a non- delegable duty of care, criticised these statements in a famous article, "Liability for Independent Contractors" [1956] CLJ, 180, on the ground that they asserted that a non-delegable duty arose without explaining why. PRE |
I think that this criticism is unfair, for the circumstances which made the duty non-delegable are reasonably clear from the facts that were being discussed. PRE |
But they have been considered and applied in four important decisions of the High Court of Australia, which consider in some detail the underlying rationale of non-delegable duties. PRE |
In Commonwealth v Introvigne (1982) 150 CLR 258, the Commonwealth of Australia, as the authority responsible for a school in the Australian Capital Territory, was held liable for injury to a child on school premises, notwithstanding that the running of the school and the employment of the staff were delegated to the St... |
This was because the duty of the Commonwealth was held to be a non-delegable duty. PRE |
Mason J, with whom Gibbs CJ agreed, took the dicta in Gold and Cassidy as his starting point, and justified this step at paras 29-35 by reference to the vulnerability and consequent dependence of school children: 29. PRE |
The concept of personal duty, performance of which is incapable of delegation, has been strongly criticised, especially outside the master and servant relationship where its introduction was designed to overcome the consequences of the doctrine of common employment (see Glanville Williams "Liability for Independent Con... |
It has been said that the concept of personal duty departs from the basic principles of liability and negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. PRE |
This criticism fails to acknowledge that the law has, for various reasons, imposed a special duty on persons in certain situations to take particular precautions for the safety of others, e.g. the occupier of premises. PRE |
30. PRE |
There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school... The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a schoo... |
... 32. PRE |
By establishing a school which was "maintained" on its behalf at which parents could enrol their children for instruction pursuant to the obligation imposed on them by the Ordinance, the Commonwealth, in my opinion, came under a duty of care to children attending the school. PRE |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.