In an unwritten manner, the law of torts prescribes how we relate and interact with one another. Unlike contracts law, the area of tort begins with the assumption of duty of care.
In the simplest sense, what it means is: do I have a legal duty in my conduct towards you? If I do, then I owe you that duty. If – by my action or omission – I failed to discharge that duty, you have a right to seek damages against me.
Duty of Care?
The duty of care concept was introduced into the common law practised throughout the Commonwealth. It began with the landmark case of Donoghue v. Stevenson  AC 562.
To quote Lord Buckmaster, the facts of the case are:-
On August 26, 1928, the appellant drank a bottle of ginger-beer, manufactured by the respondent, which a friend had bought from a retailer and given to her. The bottle contained the decomposed remains of a snail which were not, and could not be, detected until the greater part of the contents of the bottle had been consumed. As a result she alleged, and at this stage her allegations must be accepted as true, that she suffered from shock and severe gastro-enteritis. She accordingly instituted the proceedings against the manufacturer which have given rise to this appeal.Per Lord Buckmaster in Donoghue v Stevenson  AC 562
The question and reasoning put forth by Lord Atkin in the same case is often cited:-
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour?
The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.Per Lord Atkin in Donoghue v Stevenson  AC 562
Knowing this, notice that the rule removes several requirements, including but not limited to: (1) geographical/physical proximity and (2) contractual relations.
Non-Delegable Duty of Care
Over time this gives rise to a new question: Can one’s duty of care be contracted out?
Before we are quick to judge, we need to see how the world works today. Every now and then we hire external help at work or at home. These could be specialists or an extra pair of hands. Should they be careless and our neighbours or passersby are injured, who is responsible? Us as the client/customer? Or the contractor we engage?
It’s useful to note that the vicarious liability concept is recognised by the courts. However an employer-employee relationship needs to exist between the defendants named.
What if, as in so many workplaces, the person charged to perform a task is a freelancer or independent contractor?
The term ‘non-delegable’ refers to the displacement of that duty of care owed by the defendant(s) towards the claimants. Can one defendant absolve themselves from the duty and putting it squarely on the other defendant(s)? The expression also refers to “the duty [extending] beyond being careful, to procuring the careful performance of work delegated to others” (Dobson, 2014)
First, we must note that non-delegable duty of care is an exception to the fault-based general rule that applies in the law of tort.
Broad Categories of Non-Delegable Duty of Care
In Woodland v Essex County Council  UKSC 66, Lord Sumption (Wiki) noted that there were two broad categories of non-delegable duty.
First, where the defendant employs an independent contractor to perform a function. That function is either inherently hazardous or liable to become so in the course of the work.
The second category involves three (3) characteristics which must all be met:
- (i) arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant;
- (ii) is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply to refrain from acting in a way that foreseeably causes injury; and
- (iii) is one by virtue of that relationship personal to the defendant.
I will cover these in much detail in a later post. Thus, when the court established that either category apply in the case brought before it, the court will have to determine whether it meets these requirements laid in the Woodland case, referred to as the Woodland Test.
Before we proceed into what Woodland test conditions are, we need to remember: the law of tort is based on fault, and the doctrine of non-delegable duty of care is an exception to that rule. This doctrine extends the fault to a party that is potentially legally independent of the tortfeasor (i.e. the one who commits the tort/civil wrong). ‘Potentially legally independent’ because while the doctrine of vicarious liability binds employees to their employers, what about independent contractors who are not employees?
Lord Sumption, recognising the principles identified by Lord Greene (in Gold v Essex County Council  2 KB 293) and Lord Denning (Cassidy v Ministry of Health  2 KB 343), reasoned that these features form the basis of whether non-delegable duty of care applies in a case brought before the court:-
- The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
- There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
- 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.
- The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
- 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.
Although it is not mentioned in the five criteria, the reasonableness requirement still applies. The court, acting as custodian of what is reasonable, will see whether imposing such duty and liability is reasonable based on the circumstances and facts of the case.
Thus, it is fair to say that not all seemingly non-delegable duty of care actions brought before the court will be treated as such. In other words, the court is free to determine on a case-by-case basis.
In his remarks, Lord Sumption said:
The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.Per Lord Sumption inWoodland v Essex County Council  UKSC 66
This introduction to the concept is not an exhaustive explanation of it. Rather, my aim is that it serves as a primer to the topic. No doubt there are many criticisms levied against the concept of non-delegable duty of care as well as questions on how far it applies, especially in Malaysia.
However, there are several key takeaway points which I would like to assert:
- Non-delegable duty is an exception to the fault-base general rule applicable in the law of torts;
- After establishing that a duty of care exist between the parties, it is crucial to identify which of two broad categories is applicable in the case at hand;
- The court will then apply the Woodland test to see whether the doctrine applies;
- The court has to also apply the reasonableness test when imposing such duty and liability;
- As the application of non-delegable duty of care is an exception, the court has to determine its applicability on a case-to-case basis.
LAW435: Law of Torts I is a subject offered by Universiti Teknologi MARA (UiTM) as part of the Bachelor of Legal Studies (Hons.) – LW213 programme. From October 2020, Aldric Tinker Toyad is enrolled in the Bachelor of Legal Studies (Hons.) programme. This article is part of the learning experience and does not constitute legal advice, nor does it negate the requirement for further research and consultation with licenced practitioners. In addition to that, the opinions herein are Aldric’s own which do not represent clients, employers, or institutions associated or affiliated with him.