Torts - Non-Delegable Duties

16.6.1C Nominal Defendant Liability Implications

Nominal defendant liability, while diminished, still applies to property damage cases.
Mauro Taxi Services Pty Ltd v Israport (Sales) Pty Ltd (1990) 12 MVR 147 (Vic SC) and Elfah Pty Ltd v Sabbadini (1994) 19 MVR 81 (Vic SC): Agreements intending to mirror Dillon's upheld relationship allowed magistrates to find drivers as agents of owners, making owners vicariously liable due to sufficient interest.
Scott v Davis 16.5.1: Rejection of 'principal-agent' vicarious liability casts doubt on the survival of these decisions.
Dillon and car hire firm cases may leave property damage victims without effective remedies, except against first-party insurers.
Taxicab drivers might mistakenly believe owner's third-party insurance covers them.
Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) cl 22: NSW addresses this by mandating third-party property damage insurance for vehicles.

Non-Delegable Duties: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

Facts: Burnie Port Authority contracted W & S for welding work during cold-store building extension, while Authority remained in occupation.
Isolite (EPS) cardboard cartons, used for insulation, were present in the space; they were flammable once ignited.
Welding sparks ignited the Isolite cartons, leading to a fire that damaged General Jones Pty Ltd's stored fruit and vegetables.
Trial judge found W & S negligent and the Port Authority liable under fire common law rule.
Tasmanian Full Court considered liability for fire had been absorbed into the rule in Rylands v Fletcher (1868) LR 3 HL 330, holding the Authority liable under that principle.
High Court held Australian courts should treat Rylands v Fletcher as absorbed into negligence law, considering the Authority's liability for W & S's negligence.

Mason CJ, Deane, Dawson, Toohey and Gaudron JJ on Non-Delegable Duty

Certain case categories impose a duty to ensure reasonable care to avoid foreseeable injury risks, not discharged by hiring a competent contractor.
Proximity creates a 'more stringent' duty to ensure care is taken (Kondis v State Transport Authority (1984) 154 CLR 672 at 686).
Hughes v Percival (1883) 8 App Cas 443, Lord Blackburn: Duty requires seeing that reasonable skill and care are exercised, non-delegable to third parties (at 446).
Kondis v State Transport Authority: Mason J identified categories with non-delegable duty:
- Adjoining land owners regarding work threatening support or common walls.
- Master and servant in relation to a safe system of work.
- Hospital and patient.
- School authority and pupil.
- Occupier and invitee (arguably).
Common element: duty-bearer undertakes care, supervision, or control of another's person/property or assumes responsibility for their safety where due care is expected.
This element is referred to as 'the central element of control'.
From the duty-owed perspective, the relationship involves special dependence/vulnerability (The Commonwealth v Introvigne (1982) 150 CLR 258 at 271 per Mason J).
Rylands v Fletcher relationships involve control, dependence, and vulnerability.
One party controls premises, introducing/retaining dangerous substances/activities.
The other party, outside the premises lacks control and is exposed to risk.
Analogy suggests the 'central element of control' generates a non-delegable duty.
Fairness supports this: the controller authorizes the dangerous situation and can insist on reasonable care.
Utility supports this: effective care incentives in contractor choice, victim directed to responsible defendant (Thayer, ‘Liability without Fault’ (1916) 29 Harv L Rev at 809).
Authority confirms this duty is non-delegable.

Degree of Care

Ordinary negligence requires reasonable care in the circumstances.
The degree of care varies with the risk's magnitude and potential damage.
Even with dangerous substances/activities like those under Rylands v Fletcher, the standard is reasonable care (Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 523).
However, a reasonably prudent person exercises a heightened degree of care in such cases.
Depending on the danger's magnitude, 'reasonable care' may require diligence amounting to a guarantee of safety.

Conclusion on Rylands v Fletcher and Negligence

Special proximity in Rylands v Fletcher gives rise to a non-delegable duty, and dangerousness heightens reasonable care.
Liability likely exists under ordinary negligence where it would under Rylands v Fletcher.
Some cases may see liability in nuisance (or trespass) instead of negligence.
The rule in Rylands v Fletcher is largely absorbed by ordinary negligence principles.
Controlling premises to introduce dangerous substances/activities creates a duty of reasonable care to avoid foreseeable harm.
This duty varies with risk magnitude and ensures care is taken for those lawfully outside the premises.
Whether this duty is non-delegable for lawful visitors remains open.
Ordinary legal reasoning suggests the duty is non-delegable.
The qualifications 'lawfully' and 'lawful' are added to reserve the position for unlawful plaintiffs.

Application to the Present Case

The critical question: Did the Authority use its control of the premises to allow a dangerous substance or activity by its contractor?
'Dangerous' isn't limited to inherently dangerous things like poison or explosives.
Likelihood of serious injury/damage makes characterization as 'dangerous' more apparent.
A substance/activity may be dangerous even if foreseeable injury arises only through 'collateral' negligence.
Hypothetical: Moving chemicals separately, which would explode if mixed, is dangerous even if the contractor is meant to keep them separate. Special precautions are required.
In this case: EPS cardboard containers were a dangerous substance due to the risk of uncontrollable fire if ignited.
Introducing >20 containers required special precautions.
Welding near the containers was a dangerous activity due to foreseeable sparks igniting the cardboard.
The Authority knew about the Isolite storage near the welding work.
The Authority authorized the contractor to do work requiring large EPS quantities and welding.
It was foreseeable that EPS would be stored in combustible containers.
The overall work was a dangerous activity with a real risk of serious fire, threatening General's frozen vegetables.
The Authority owed General a non-delegable duty to ensure reasonable care preventing Isolite ignition during welding.
W & S did not take reasonable care, making the Authority liable under negligence principles.
The appeal was dismissed (Brennan and McHugh JJ dissenting).

Question 16.6.2: J Swanton's Note on the Case

J Swanton noted Plaintiff was insured and Defendant was a public body funded by taxpayers.
Suggests a narrower non-delegable duty excluding liability in this case could have led to a more satisfactory conclusion.

Note 16.6.3: Application of Non-Delegable Duty

While the general principle is well-established few cases have relied on the Burnie Port Authority type of non-delegable duty.
A D & S M McLean Pty Ltd v Meech (2005) 13 VR 241: Victorian Court of Appeal applied dangerous activities principle to hold landowner who allows agistment of animals on land liable to road-users injured by animal escape, even if due to someone else’s carelessness.
Followed similar decision in Simpson v Blanch (1998) Aust Torts Reports ¶81-458.
Authority of these cases may need to be tested in light of Montgomery 16.6.16C, where there was reluctance to expand non-delegable duty categories.
They were not referred to in discussion of extra-hazardous activities in Transfield Services (Australia) Pty Ltd v Hall (2008) 75 NSWLR 12 (CA) at [53]–[107] per Campbell JA.
- Contractor maintaining high ropes training course for Naval Reserve was not liable for subcontractor negligence that caused trainee injury.
Bettergrow Pty Limited v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (No 2) [2018] NSWSC 514: Non-delegable duty did not arise as ‘waste disposal’ was not inherently dangerous: see [66].
Herridge v Electricity Networks Corporation t/as Western Power (No 4) [2019] WASC 94: Ordinary maintenance of overhead power lines was not an ultra-hazardous activity: at [335].
Woodhouse v Fitzgerald and McCoy (No 2) [2020] NSWSC 450: Conducting a ‘controlled burn’ in bushland was inherently hazardous, potentially making the landowners liable for negligence of those contracted to do the work: see [226]–[243].
- (This finding was not disturbed on appeal in Woodhouse v Fitzgerald [2021] NSWCA 54: see Basten JA at [50].)

Questions 16.6.4: Kondis v State Transport Authority

Mason J discussed the origin of non-delegable duty in the employer-employee context.
Employer must take reasonable steps to provide adequate plant and equipment, a safe workplace and a safe system of work.
Unwillingness to accept the result that duty only requires due care has led judges to speak of the employer’s duty as ‘personal’ or ‘non-delegable.’
Wilsons & Clyde Coal Co v English [1938] AC 57: Employer's duty of care to an employee was non-delegable, so the defense of common employment was not available to an employer who was the owner of a mine where injury was caused to a miner.
Strict liability was already in place under workers’ compensation legislation.

16.6.5: Further on in Kondis 16.6.4

Lord Wright suggested the principle might be limited to negligence on the part of an employee and might not necessarily extend to that of an independent contractor.
It is impossible to draw a convincing distinction between delegation of performance of the employer’s duty to an employee and delegation to an independent contractor.
Davie [v New Merton Board Mills Ltd [1959] AC 604]: The decision denied that the employer is liable where the negligence is not that of an independent contractor to whom the employer has delegated the performance of some part of his duty, but is that of a stranger

General Principle 16.6.6: Kondis v State Transport Authority

Criticism: no criteria distinguishing non-delegable duties from those which are not.
Glanville Williams, ‘Liability for Independent Contractors’ [1956] CLJ 180 at 183–4.
Fleming, Law of Torts, 6th ed 1983, p 360; Salmond & Heuston on Torts, 18th ed, 1981, p 457
The principal objection is that it substitutes for the duty to take reasonable care a duty to ensure reasonable care is taken.
There is some element in the relationship between the parties that makes it appropriate to impose a duty to ensure that reasonable care and skill is taken for the safety of the persons.
Non-delegable duty ensures the employer bears liability for the negligence of independent contractors in devising a safe system of work.

16.6.7 Other Categories of Non-Delegable Duty

Swanton, ‘Non-delegable Duties: Liability for the Negligence of Independent Contractors’ (Pt 1) (1991) 4 JCL 183; (Pt 2) (1992) 5 JCL 26.
Foster, ‘Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom’ in A Robertson and M Tilbury (eds), Divergences in Private Law, Oxford, Hart, 2016.

Hospitals 16.6.8

Kirby P in Ellis v Wallsend District Hospital 16.2.8 recounts the history of hospital liability.
Lord Denning in Cassidy v Ministry of Health [1951] 2 KB 343 (CA):
- Hospitals must use reasonable care and skill to cure the patient.
- Hospitals cannot, do it by themselves and must do it by their staff:
- If their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him
- If the patient selects the doctor or surgeon, the hospital is not liable.
Roe v Minister of Health [1954] 2 QB 66 (CA):
- Hospital authorities are responsible for the whole of their staff including doctors and surgeons.
- The exception is consultants or anaesthetists selected and employed by the patient himself.
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 (CA)
- Held that the honorary surgeon was not an employee of the hospital, whether he was treating a private patient of his own, or a public patient.
- They recognized the hospitals liability arose not from the relationship with the surgeon but its relationship with patient, as non-delegable duty.

Schools 16.6.9: Commonwealth of Australia v Introvigne

A schoolboy was severely injured when the top of a flagpole fell on him.
Teaching staff were negligent in failing to provide adequate supervision of the playground area at the time in question and in failing to padlock the halyard to the pole
High Court found these were the cause of the respondent’s injuries.
Mason J:
- By establishing a school where parents would enroll their children, the Commonwealth came under a duty of care to children attending the school.
- The fact that the Commonwealth delegated the teaching function to the State does not affect its liability for breach of duty.
Non-delegable duty owed by schools to their pupils continues to be supported by Australian courts: see Fitzgerald v Hill (2008) 51 MVR 55 (Qld CA).
Woodland v Essex County Council 16.6.8: The United Kingdom Supreme Court ruled that such a duty also exists in the United Kingdom.

16.6.10 NSW v Lepore 16.3.17

There can be no breach of a non-delegable duty of care owed by the state occasioned by an intentional assault committed by a teacher.
McHugh J held that a school owes its pupils a non-delegable duty of care which is breached even by intentional wrongdoing by a teacher
Content of the duty was not ‘an absolute duty to prevent harm.’

16.6.11 Prince Alfred College Inc v ADC 16.3.18C

The respondent contends that New South Wales v Lepore was wrongly decided.
Lord Reed in Armes v Nottinghamshire County Council [2018] AC 355, commented explicitly at [51] on the intentional tort point, holding that a non- delegable duty could be breached by a deliberate wrong (Lord Hodge, dissenting on other issues, agreed with this comment at [75].)
Foster, ‘Tort Liability of Churches for Clergy Child Abuse after the Royal Commission: Implications of Developments in the Law of Vicarious Liability and Non-Delegable Duty’ Melbourne Law School Obligations Group, Torts Conference Dec 2018
See also D Tan, ‘For Judges Rush in Where Angels Fear to Tread …’ (2013) 21 TLJ 43, 57;Foster (2016) 16.6.7 at 131; and Pioneer Mortgage 16.4.3 at [64])
P Giliker, ‘Analysing Institutional Liability for Child Sexual Abuse in England and Wales and Australia: Vicarious Liability, Non-Delegable Duties and Statutory Intervention’ (2018) 77(3) Cambridge Law Journal 506–535; J Maxwell, ‘Liability of Educational Institutions for Child Abuse’ (2019) 93 ALJ 477; F Santayana, ‘Vicarious liability, Non-delegable Duties and the “Intentional Wrongdoing Problem”’ (2019) 25 Torts Law Journal 152–83
The Royal Commission into Institutional Responses to Child Sexual Abuse, in its report Redress and Civil Litigation 16.3.21, recommended the introduction of what is in effect a statutory non-delegable duty on institutions caring for vulnerable children: see pp 483–93.
In Armes, the UK Supreme Court held that a local authority which placed children into the care of foster parents did not owe a non-delegable duty.

Occupiers and Landlords 16.6.12

Under the old law of occupiers’ liability, courts placed an occupier under a non-delegable duty of care to an invitee: see Vial v Housing Commission of NSW [1976] 1 NSWLR 388 (CA).
This has probably disappeared under the law laid down in Australian Safeway Stores Pty Ltd v Zaluzna 7.5.3C

16.6.13: Northern Sandblasting Pty Ltd v Harris

Brennan CJ and Gaudron JJ in effect imposed a non-delegable duty of care on a landlord prior to the letting of the premises, while Toohey and McHugh JJ found the landlord liable for breach of a non-delegable duty of care during the lease.
Jones v Bartlett 7.5.8: ‘a landlord may ordinarily discharge its duty by delegating such inspection and repair to a competent person’

16.6.14 Bailees: Morris v C W Martin & Sons Ltd

Lord Denning MR decided the case on the basis of the sub-bailee owing a non-delegable duty of care to the bailor.
This case is today usually seen as an example of vicarious liability for intentional wrongdoing.

16.6.15 Highway Authorities and Repairs: Leichhardt Municipal Council v Montgomery

Plaintiff fell into a hole not properly covered by contractors engaged by the council.
Kirby J:
- Ordinarily, a person is not liable in law for the wrongs done by that person’s independent contractors, as distinct from employees
- Certain relationships give rise to a non-delegable duty of care, it has not recognised the relationship of roads authority and road user as one which does so
- Not bound to do so, either by the Scroop line of cases in Australia or by the collection of English authority to which Scroop, and its Australian successors, purport to give effect.
The authority is exceptional and amounts to an exception to the general principle of tort liability recognized by the common law of Australia.
Users of roads are normally unknown and unknowable to roads authorities. They do not represent a closed category and, to recognize a non-delegable duty in respect of them, would be extremely burdensome and costly.
Hayne J: Contention that a highway authority owes a road user a non-delegable duty of care is no more than a different expression of the proposition that the highway authority is to be vicariously liable for the negligence of its independent contractors.

Callinan J

Principle appears to have been well accepted, although has shifting foundations.
Halsbury’s Laws of England
The principle is open, I think, to a similar, even stronger, criticism than the ones to which the distinction between misfeasance and non-feasance was subjected.

16.6.17 Leichhardt Municipal Council v Montgomery [2007] NSWCA 361

Council held not to have breached its direct duty of care.
Browning v Bitupave Ltd t/a Boral Asphalt (2008) 49 MVR 287 (NSW SC) followed the principal case in holding that the local council, which had engaged a contractor to maintain a road, did not have a non-delegable duty and hence was not liable for the carelessness of the contractor’s employees.

Civil Liability Act 2002 (NSW)

Following the Ipp Report’s Recommendation 43, the New South Wales legislature introduced the following provision:
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 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 is complementary to s 3C, which provides that
  Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.’