Tue, 21 Jan 2003 10:45:23
Dubai Aluminium v. Salaam
The most remarkable thing about the Lister
case is that the notion of a non-delegable duty of care was not discussed
at all in that case - for instance, counsel for the defendants in that
case did not attempt to distinguish Morris on the basis that liability
in that case was based on the defendants' having been put in breach
of a non-delegable duty of care by their employee; instead they argued
that the facts of Morris were 'very far from those of the instant case'
( 1 AC 215, 218). And yet, while the concept of a non-delegable
duty of care was not mentioned in Lister, the House of Lords' reasoning
in favour of finding the defendants liable in that case was identical
to the reasoning a court would employ in finding a defendant liable
in a non-delegable duty of care case: the defendants had a duty to look
after the plaintiffs, the defendants gave the caretaker the job of looking
after the plaintiffs and the caretaker failed to do that job when he
sexually abused the plaintiffs. The reasoning of the House of Lords
in the Lister case - and their failure to keep separate the ideas of
vicarious liability and personal liability for breach of a non-delegable
duty of care - is very effectively criticised by Tony Weir in his new
book on Tort Law (2002), pp 103-104.
agree with much of this but I think Nick is being rather harsh on the
HL in Lister. I hesitate because I am pretty sure that Nick knows more
about tort law than I ever will but here goes.
phrase "non-delegable duty of care" is misleading. What Nick is suggesting
is that the defendants should have been (and were) strictly liable in
respect of the care provided through others. It should not matter whether
the 'others' were employees or independent contractors. Examples of this
1. A entrusts goods to B. B employs an independent contractor C to look
after the good. C steals them.
A highway authority employs an independent contractor to repair a road.
The independent contractor negligently injures a road user.
A employs B to work with an independent contractor C at the same site.
B is injured due to the negligence of C.
is the defendant held liable in each of these cases, what is the cause
of action? Assuming that the defendant has not been careless in the selection
of the independent contractor, negligence is not possible. Vicarious liability,
at least as properly understood, is unavailable as the person who has
caused the loss is an independent contractor and not an employee. Stating
that there is a 'non-delegable duty of care' does not identify a cause
of action but merely asserts that the defendant should be strictly liable.
each of the three examples given causes of action could be identified
(1. breach of duty as bailee; 2. breach of statutory duty; 3. breach of
contract and/or breach of statutory duty to provide a safe system of work).
I am not sure that this could be done in Lister. The defendants ran a
school to which children with emotional and behavioural difficulties were
sent by local authorities. Children were abused by a warden employed by
the defendant. If vicarious liability is excluded what was the cause of
action against the school? Trespass to the person is ruled out, this act
was only carried out by the warden. Negligence was not found. The claimants
had no contract. The defendants were under no statutory duty and a direct
claim by the children would probably not have been allowed on this ground
even if they were.
would, of course, have been possible for the House of Lords to identify
a new cause of action. Strict liability for the care of children you have
assumed responsibility for, perhaps. This was not, as far as I can see,
argued for. It is, of course, always important to distinguish between
personal and vicarious liability but you have to identify what the nature
of the personal liability is.
a different view see:
don't think children are the same as mink stoles.
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