Don't non-delegable duties (in contrast to vicarious liability) depend on the agency of the contractor in the discharge of the defendant's duty, enabling (through normal principles of the law of agency) the acts and (subject to certain exceptions) knowledge of the contractor to be attributed to the defendant for the purposes of assigning liability. If so, the next question is what is the nature and extent of the duty the performance of which the agent has delegated? If it is a duty with respect to the escape of dangerous things or the causing of a nuisance (see Woodland [8-9]), the defendant can be liable even in the absence of negligence by the contractor, because he is treated as having caused the escape. If it is a duty to ensure that care is taken of the claimant, he will be liable if the contractor does not take care of the claimant (unless he does so in the performance of functions other than those delegated to him by the defendant - that is the collateral element - see [13]) and that liability may be in negligence or for another tort, such as trespass to the person.
I anticipate the reaction to that from at least one member of the list, but I thought it worth contributing my first reactions to the Woodland decision.
Best wishes
Andrew
Sent: 25 October 2013 09:01
To: Phillip Morgan
Cc: obligations@uwo.ca
Subject: [Spam?] RE: ODG: NDD in the UKSC
Dear Phillip;
This is a very good question. I have long thought that the appropriate way of approaching sexual abuse by clergy (as In the Various Claimants case and JGE) would be by an appropriate formulation of the non-delegable duty owed by religious organisations to the children whom they undertake to care for, rather than by what I see as a distortion of the law of vicarious liability by extending it in a fairly open-ended way to “employment-like relationships”. The barrier in the way of that theory for Australia is what seemed to be a consensus in the High Court of Australia majority decisions in Lepore that NDD could not apply in the case of an intentional tort. I have always thought this was wrong (and the view was carefully rebutted in dissent by McHugh J in Lepore itself.)
If the focus of the NDD liability is the relationship between the defendant and the victim of harm (unlike in VL, where the focus is on the relationship between the defendant and the wrongdoer), then it should not matter how the duty to see that reasonable care is taken of the victim was breached, whether through carelessness or intentional act of the wrongdoer. I think it is encouraging that the UKSC has formulated principles fairly broadly in Woodland, and this approach would seem to open the way to hold organisations caring for children (including those placing children into foster care) responsible for harm caused to those children.
Regards
Neil
Associate Professor Neil Foster
Newcastle Law School
Faculty of Business and Law
T: +61 2 49217430
E: Neil.Foster@newcastle.edu.au
Web: http://www.newcastle.edu.au/profile/neil-foster
Papers: http://works.bepress.com/neil_foster/
The University of Newcastle (UoN)
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Callaghan NSW 2308
Australia
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From: Phillip Morgan [mailto:phillip.morgan@york.ac.uk]
Sent: Friday, 25 October 2013 2:37 AM
To: Neil Foster
Cc: obligations@uwo.ca
Subject: Re: [Spam?] ODG: NDD in the UKSC
Dear Neil,
Thank you for this.
This would appear to be a potentially significant expansion to the remit of non-delegable duties. Particularly since the duty in Woodland does not seem to be derived from a detailed construction of the relevant legislative provisions.
For instance, Lord Sumption’s five ‘principles’, (at [23]), seem to pave the way for a non-delegable duty for local authorities towards children in care (Cf the SCC in KLB and MB). This is relevant to foster carer torts – where the English courts have not yet accepted the existence of vicarious liability between carer and local authority. If one is to believe the UK media more such test cases are being brought.
At Para 23 Lord Sumption stated:
“(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”
He appears to have avoided the issue of intentional torts here, which at least within the educational and care context are also significant. Surely the same principle would apply here as well?
Kind regards,
Phillip
On 23 October 2013 13:15, Neil Foster <neil.foster@newcastle.edu.au> wrote:
Dear Colleagues;
The UKSC has now handed down its decision on non-delegable duty owed by schools, in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013) http://www.bailii.org/uk/cases/UKSC/2013/66.html . I am very pleased to say that the Court as a whole all held that schools do indeed owe a non-delegable duty of care to pupils, and hence that in the Woodland case the matter needed to be sent for trial on the basis that the local authority running the school might be held liable for negligence by the contracted swimming instructors whose carelessness may have given rise to Miss Woodland's injuries. Lord Sumption sets out a set of five criteria which he thinks should be applied to determine if an NDD is owed at para [25], which as far as I can recall look pretty similar to the criteria suggested by list member John Murphy a few years ago. Lady Hale, in an essentially concurring judgment (I am still not quite sure why her Ladyship felt it necessary to deliver a separate judgment; if anyone notices a difference between her and Lord Sumption let me know!) specifically cites list member Christine Beuermann at [33] (and the TLJ!).
Lord Sumption refers in detail to High Court of Australia decisions on the point and agrees that the approach taken in Introvigne and Kondis is generally correct. My only mild qualm about the judgment is that his Lordship suggests at [21] that in Lepore "by a majority of 4-3 (Gaudron, McHugh, Gummow and Hayne JJ) the Court held that the schools owed a non-delegable duty". I concede that Lepore is such a complex and confusing decision that I may have missed it, but I don't think Gummow and Hayne JJ really supported a non-delegable duty in the context of the intentional tort of sexual assault being considered in that case. But this, even if I am right, is a minor blemish in what I consider to be a very good ruling.
Colleagues may not have realised (I hadn't until a few weeks ago) that the UKSC has now taken to giving a "5 minute" video summary of their decisions which is available on Youtube. Those who are interested to see and hear Lord Sumption summarise the decision can do so at http://www.youtube.com/watch?v=J_Cu49Lht8w&feature=c4-overview&list=UUdkf93h71xVAl28v467Hk7w .
Regards
Neil
Neil Foster
Associate Professor
Newcastle Law School
Faculty of Business and Law
T: +61 2 49217430
E: neil.foster@newcastle.edu.au
Further details: http://www.newcastle.edu.au/profile/neil-foster
My publications: http://works.bepress.com/neil_foster/
The University of Newcastle (UoN)
University Drive
Callaghan NSW 2308
Australia
CRICOS Provider 00109J