LAWS1020/LAWS6120 (Torts I): Sem 1 2025 Notes: Week 10

Non-Delegable Duty

  • Exploration of situations where a principal engages an independent contractor and whether there can be strict liability for harm committed by the contractor.

  • In general, a principal is not vicariously liable for actions of an independent contractor. Cf. Hollis v Vabu [2001] HCA 44: [32].

  • Attempt to reformulate the rules was rejected by the High Court in Hollis.

  • See Bird v DP (a pseudonym) [2024] HCA 41 (13 November 2024).

Non-Delegable Duty of Care

  • Specific situations where courts have recognized a "non-delegable duty of care," where strict liability may be imposed on a principal for actions of a contractor.

  • Similar to vicarious liability in result but conceptually different.

  • In cases of non-delegable duty, the main question concerns the relationship between S and V and whether S owes a duty to V for reasonable care.

  • UK Supreme Court decision in Woodland v Essex County Council [2013] UKSC 66.

  • Stevens suggests cases of non-delegable duty are better analyzed as liability imposed by law for "voluntary undertakings."

  • CCIG Investments Pty Ltd v Schokman [2023] HCA 21: Edelman and Steward JJ provided an overview of non-delegable duty at paras [70]-[81].

  • Bird v DP (a pseudonym) [2024] HCA 41: A non-delegable duty of care is a duty of a special and more stringent kind; it is not merely a duty to take care, but a duty to ensure that reasonable care is taken.

Pafburn Pty Limited v The Owners - Strata Plan No 84674 [2024] HCA 49

  • Generally, a "non-delegable duty" means a person cannot exclude or limit their liability for conduct within the scope of the duty of care causing reasonably foreseeable harm merely by exercising reasonable care in arranging for another person to perform the function.

Criteria for NDD to Operate

  1. Wrong committed to V by a contractor W engaged by S

  2. Relationship between S and V is such that the law will impose a non-delegable duty on S; established examples include:

    • Employer-employee

    • Hospitals and patients

    • Prison authorities to prisoners (probably)

    • Schools and pupils

    • Occupier and contractual entrant onto premises

    • Occupier of premises in relation to dangerous activities causing harm to those nearby

  3. Wrong was committed while W was engaged in performing their contract, or within the scope of the contract.

History of the Non-Delegable Duty

  • Gleeson CJ in NSW v Lepore [2003] HCA 4 at [20].

  • Terminology of "non-delegable duty" comes from the idea that there are certain duties owed to others, the performance of which cannot be passed on to someone else.

  • Important not to forget that the content of the duty will still need to be examined.

  • Kirby J in Lepore, discusses the purpose of developing the doctrine of non-delegable duties, which is to ensure that, in cases in which courts have considered that liability "should", or "ought to", be imposed, the principles of vicarious liability, specifically the restriction on an employer's vicarious liability for the conduct of an independent contractor, should not act as a barrier to such liability.

  • It was simply a device to bring home liability in instances that would otherwise have fallen outside the recognised categories of vicarious liability.

  • It is important to distinguish the content of duty from the question of who has been delegated to perform the duty.

Meaning of