non-delegable duties

Question 1

the first requirement

Answer 1

the claimant is a patient or a child, or for some other reason is specifically vulnerable or dependent on the protection of the defendant against the risk of injury.

Question 2

second requirement

Answer 2

there is an antecedent relationship between the claimant and the defendant, independent of the negligent Act or Omission itself

Question 3

third requirement

Answer 3

the claimant has no control over how the defendant chooses to perform those obligations i.e whether personally or through employees or through third parties

Question 4

fourth requirement

Answer 4

the defendant has delegated to a third party some function which is integral part of the positive duty which he has assumed towards the claimant and the third party is exercising, for the purposes of the function thus delegated to him

Question 5

fifth requirement

Answer 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.

Question 6

the limitation on the duty

Answer 6

a non-delegable duty should only be imputed to schools only so far as is fair just and reasonable

Question 7

situations in which they would not be liable

Answer 7

if only have to arrange for its performance

extra curricular activities outside of school hours

Question 8

what is a non-delegable duty

Answer 8

the defendant has to ensure that care is taken by whoever is actually carrying out the activity. they must then answer for any harm negligently caused.
the party owing the duty will be liable eventhough the harm was incurred through the conduct of a third party
if not a function the defender would have assumed responsibility for the non-delegable duty will not arise.

Question 9

the importance of woodland

Answer 9

had never before been extended to independent contractors

Question 10

the finding in woodland

Answer 10

the essential feature of a non-delegable duty of reasonable care was that the defendant had control over a vulnerbale claimant for the purpose of performing a function for which the defendant has assumed responsibility; that within school hours was in such a position of responsibility and control over a pupil. it was just fair and reasonable to hold the school liable for injury caused by an independent contractor.

Question 11

cassidy v ministry of health

Answer 11

• 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

Question 12

lady hale

Answer 12

decided on a case by case basis

Question 13

NA v nottinghamshire county council

Answer 13

• wouldn’t be fair just and reasonable to impose a duty
• the 5 criteria were met
• public policy money would be better spent in delivering a safe and good foster service.

Question 14

armes

Answer 14

was found liable under vicarious liabilty not non-delegable duties
- they had duties to higher level matters not day to day care of child.
lord reed - non delegable duties have a higher than normal duty of care
the court had to decide whther the duty to recieve and keep a child imposed a non-delegable duty of care.

Question 15

finding in armes

Answer 15

non-delegable duty did not extend beyind boarding out
- the visit might be in the interest of the child
worried if they extended it then it would make the authority liable if family members comitted torts even if visit was reaosonable

Question 16

lady hale - reason for discharging the school

Answer 16

the reason why the school was liable is that has undertaken to care for the patient, and the school take care of the pupil, that responsibility is not discharged by simply choosing apparently competent people to do it.

Question 17

quote by lord sumption

Answer 17

“both principle and authoirty suggest that the relevant factors are the vulnerability of the claimant and the existence of a relationship between the claimant and the defendant by virtue of which the latter has degee of protective custody over him, and the delegation of that custody to another person”

Question 18

vicarious liability how it differs from NDD

Answer 18

• qui facit per aliun facit - someone who acts through another acts for themselves.
• the employer is called upon to bear any risk og harm to third parties created in the course of his operation proved it is just to require him to do so.

Question 19

the questions in cox that establish vicarious liability

Answer 19

1. what sort of relationship has to exist between an individual and a defendant before the defendant can be made vicariously liable
2. In what manner does the conduct of that individual have to be related to that relationship, in order for vicarious liability to be imposed on the defender.

Question 20

lord reed in cox

Answer 20

a relationship other than employment can give rise if integral part of the business and activites carried on by a defendant and for its benefit, and where the commission of the wrongful acts is a risk created by the defendant by assigning those activities to the individual in question”

Question 21

how does various claimants v catholic child welfare society

Answer 21

expended to akin to employment, but has never been extended to that outside of employment relationship

Question 22

armes - non-delegable duty

Answer 22

• The idea that a LA was responsbible to ensure that reasonable care was taken off children in foster care was too demanding
• Might be in best interest to stay with parents
• If held liable for duty of care when staying with family etc conflict between the duty to children and wanting to avoid liability would arise
• The liability would be strict, so would then become a form of state insurance for family members
• In applying woodland had to arrange for and monitor the performance
• S22 did not impose liability for day-to-day activities
• Non-deleagble duty did not extend boarding out.

Question 23

Armes - vicarious liabiltiy

Answer 23

• Foster parents couldn’t be regarded as carrying on an independent business of their own, The course of activity was for the benefit of the local authority
• The Local auhtoirty had created the risk , as the placement by the local authority created trust between the children and the foster parents
• The LA exercised power of approval and inspection and therefore had control
• Most parents had insufficient means to meet damages
• Lord Hughes dissented – saying that if it applied to foster carers would need to apply to family and friend placements

Question 24

cox

Answer 24

cox – fairness and the circumstances would dictate liability. Cox downplayed the relevance of the first and fifth requirement.

Question 25

arguments in barclays

Answer 25

A constant of vicarious liability has been that self employed independent contractors do not fall within the realms of vicarious liability. The court of appeal has abandoned the distinction between contract of service and contract for services, when they held that the bank was liable for sexual assaults carried out by a doctor was self-employed. The respondents claimed he was a direct employee or in a role “akin to eployment” Bank said he was independent so was liable.

Question 26

finding in barclays

Answer 26

Found 1. Committed as a result of an activity undertaken on behalf of the bank 2. Benefit of the bank and an integral part of the duty 3. Working under the banks control in respect of the nature of the medical assessments and completion of the reports 4. Bank more likely to have the means to compensate Held it was fair just and reasonable to hold the bank liable.

Question 27

reasoning of the court of appeal in barclays

Answer 27

– the development of the law in recent years now required answers to the specific questions laid down in cox and other recent judgements, rather than whether they were independent contractors. The change in approach was due to the change in business structures.

Question 28

lord philip catholic child welfar society

Answer 28

first recognised that the law in vicarious liability was on the move in catholic child welfare society.

Question 29

e v english province

Answer 29

said that the courts position was abundantly clear that employers cannot be liable for the torts of an independent contractor.

Question 30

comments on barclays

Answer 30

The most ground shifting aspect of the judgement was its refusal to place any weight on the fact the doctor could be properly categorised as an independent contractor. Barclays creates the impression that vicarious liability is now a matter for retrospective consideration, liability placed on whoever is most economically attractive. Exposed the victims to such harm and failed to protect them adequately, which in turn gives rise to liability under the more appropriate doctrine of non-delegable duty. It has now gone past orthodox distinctions and placed an intense focus on the facts of each case instead of relying on the exemption of independent contractors.