Discuss the relationship between vicarious liability and non delegable duty?

Introduction

Vicarious liability:

It is vicarious liability when wrong is done with a third party by the employee when he is in the employment. Its employer’s vicarious liability for the wrongdoing of employees of the third party when he is in employment, For vicarious liability to exist, there has to be an employer, employee relationship and the wrong is done during his employment.The employer is directly liable for other way of behaving, conduct  and wrongdoing to third parties.

Non delegable duties:

Whereas Non delegable duties are duty to care for others. For eg. Any Hospital or Any public institution has non delegable duties towards their patients or r public in the institution.Hospital would be liable if it does not show duty to care of patients.If employer   fails to duty to care  for others  for the work delegated,he is liable  to pay damages personally.In this case, employers earn lots of profits and so  has to bear the risks arising therefrom.Since the employer has a duty to care, he will try to prevent accidents and will take all the possible steps to provide insurance to his employees.

In Vicarious liability there should be employment relationship which means that provision of law of torts apply when the relationship is of employer and employee.It was held in Hollis V/s Vabu that an employer is vicariously liable for the wrong done by employees when in employment. Once the employment relationship is satisfied, it is essential that wrong was done in the course of employment. The relationship of employment also includes Principal and agent. Authorizing agent to act or do things on behalf of Principal establishes an employment relationship in law of Torts. The owner of the car is vicariously liable for the neglected conduct of his driver.[1]

In non-delegable duty, hospital is vicariously liable for all the persons who are in the services of  the hospital and do so in  the name of the hospital. In Kondis V/s State Transport Authority, an employer had hired an independent contractor who operated crane, the

jib of the crane fell upon the employee. In this case the employer was not vicariously liable for negligence of the Contractor but was liable to the employee or claimant on whom the jib fell as per the provisions of non delegable duty. [2]

Whenever there  is  a breach of nondelegable duty it can be so determined only if it were treated as vicarious liability. Thus the factor of vulnerability is relevant in the circumstances  if the act of employee was carried out  through delegation. In recent times, the  question had arisen in respect of Independent Contractors. Whether Employer was vicariously liable for the wrong done by the independent contractor. It was held that an employer is not only vicariously liable for the wrong doing of his employees, but his liability extends to the independent contractor too.[3]  The U.K. Laws have taken into consideration many instances where it is the non delegable duty of the independent contractor to take due care.

One such instance is that of extra hazardous acts. In the case of Honeywill Stein Ltd V/s Larkin Bros 1934 Lord Sumption had held that defendant was held for non delegable duty who had hired an independent contractor for extra hazardous activities. Another instance is of work carried out for highway. [4] It is the non delegable duty of independent contractor to take due care of all passing on the highway and that his work though of an independent contractor should take due care that his operations do not cause any harm or danger to passersby. One more instance is of withdrawal of support of neighboring land. It is the non delegable duty of the landlord to take due care of the common wall of his and his neighbors while carrying out any work on one’s own land in spite of employing independent contractor. In Rylands V/s Fletcher, If an individual keeps anything on his land that would escape, it is his non delegable duty to take due care is taken by him if it escaped and no harm or injury is caused to anyone due to such escape though the things are bought by an independent contractor.

A bailment is another instance where it is the duty of bailee to take due care of goods bailed with him. In case of negligence bailee will be held liable for non delegable duty. An employer’s duty to care for his employees. Employer in this case is liable to take due care to his employees by keeping them in safe conditions or environment. Any harm or injury if caused to them, the employer is directly liable for damages and compensation. Hence employer cannot avoid this even if the employer has delegated his work to someone else.

Relationship between vicarious liability and non delegable duty

In Vicarious liability, an employer is liable for any wrong done  by the employee  when in employment irrespective of the relationship between injured and the employer. Whereas in non delegable duty the relationship between injured and the employer has to be established.In vicarious liability it is the duty of the employee and breach by employee.

In Cassidy v/s Ministry of health Lord Denning observed that the most important factor was  not of the relationship between hospital and the negligent doctor but between claimant and the hospital. When hospitals employ or hire doctors or specialists or nurses or any other person for taking care of patients, than if any surgeon, doctor, nurse or any person so appointed is negligent in his duties in taking due care of patients than a hospital is liable for the negligence of any person whose services are taken by the hospital. So here the relationship between the claimant and hospital is to be examined (Salvador-Coderch, Garoupa and G�mez-Lig�erre, n.d.).

The provisions of vicarious liability were applied in most of the cases, but here Lord Denning observed that hospitals had a non delegable duty to care of the patients who came for treatment.

Lord Sumption has observed that there were two categories of non delegable duty.

The first is where the  an independent contractor is hired by the defendant for his work  the operation of the said work  is hazardous. The second category has three  features where duty (i) arises  because  of the relationship between the defendant and the claimant which is antesedent relationship and not due to the negligence of the work carried out (ii) is a  not a negative duty .it is either  positive or affirmative duty  to protect certain class of people against certain kinds of risks and not simply to move away from or get away from acting in such a way that  causes injury and (iii) is one by  the value  of that relationship personal to the defendant.[5]

Applicability of non delegable duty

Lord Sumption observed that the main problem with this was to not allow a wrongdoer to eat up the rule So this duty has following features:

1. The claimant may be a patient,  pupil, student a prisoner or the resident of a care home  or one who is vulnerable or dependant on the defendant’s protection against risk of injury.

2. An antecedent and different type of relationship between the claimant and the defendant and where claimant is under the charge of the defendant  and where it has been assumed to protect the claimant from harm, a duty being positive.

3. The claimant is not aware as to how the defendant performs his work or operations and neither any control on defendant.

4. The defendant has delegated  a part of his work or duty to a third party and so the claimant is in care of a third party who is carrying on his work delegated to him by the defendant.

5. The third party in the work delegated to him by the defendant commits negligence in the matter of claimant.

The most important  factor is the third party’s control over the claimant for which the responsibility is assumed by the defendant. Since  the Courts should be just, fair and reasonable, so It is right to say that the school should be answerable for all the acts done by its delegate while carrying out the work and should exercise control carefully.It was further held that though schools  have a duty to care a non delegable duty they cannot be held liable for duty which it cannot perform but has to make arrangements for the performance of certain duties such as school trips. But schools are under statutory obligations. They are bound by statutes, hence they always assume the role of parent, which means they have a much bigger responsibility than the parent as schools develop intimacy with every child in school and this intimacy of the school with the child cannot be explained in any language of law. The result is that  the school had a non delegable duty to care if the child was injured  due to negligence by the contractor who was delegated work on behalf of the school. The school is in breach of duty. Lady Hale too agreed what Lord Sumption observed, but opined that new situations may take place every day and this is not enough so precaution is essential. Though the case of Woodland V/s swimming teachers association would raise the levels of fear in the minds of people, there is no need for such anxiety as the schools have started giving the work to the staff which would make school  vicariously liable. Henceforth schools will take steps to indemnify the child from any such external arrangements.[6]

In the case of Woodland V/s Swimming Teachers Association Essex Count Council a school was alleged that it had a non delegable duty as loco parenti to take due care of children in school. In the Appeal Court judges held that it was unjust and unfair to make Essex County Council liable for non delegable duty in view of the fact that swimming lessons were given outside the school and that school had no control over the exercise of powers given to the swimming pool. Lord Sumption disagreed with the judges of the appeal court and rejected what was said. Lord Sumption held that  the school  was not having powers over the swimming pool cannot be considered as  even if in this case school had no powers, in spite of it the school was liable for  non delegable duty. The claimant was injured in the environment for which the defendant school had assumed responsibility of due care.Lord Sumption further rejected that  it would not be fair and reasonable to put the burden of duty on school. He reasoned that it is always the policy and rule of law under the provisions of this law to protect the vulnerable and dependant against those who have control over them. The parents repose trust in the school when they send their children to school. It is right for school to owe greater responsibility to their students than that of a parent as schools are governed by statutes and it is their  statutory obligation to take due care of its students. In any legal context the intimacy of  school with students cannot be explained. As after home their second home is a school. Swimming was a part of school lessons so if the lifeguard and swimming teachers were negligent in their operation of work delegated to them, it was the breach of duty to care on the part of  school for not providing safe swimming lessons.

Assumption of responsibility

Lord Blackburn had referred that assumption of responsibility had risen by the value of the relationship  that the defendant  has with the claimant. To determine whether the defendant has the duty to care only as far as the loss of the claimant is concerned as a tool to the law of negligence by assuming the responsibility. Undoubtedly, in this case the public services and educational institutes like schools are responsible and  owed a duty of care to its pupils protection  and has to see that no  harm or injury is caused to its pupils. But the concept of assumption of responsibility  has to determine its scope, whether the potential loss is economic or physical.  In the said circumstances, it is a must that the defendant should not only have an affirmative or positive duty, but the duty to the assumption of responsibility in its true sense. The defendant should have that virtue of assuming responsibility for all the wrong or negligence of his delegates.[7]

This is a markedly more onerous obligation. What are the circumstances in which a person may be taken to have assumed it?  The circumstances in which it is assumed in  many cases  where employees, hospital patients, school pupils and invitees are injured  by the persons working for the defendant  where the defendant was not vicariously liable.

In many situations where the defendant is held liable and further held that defendant had assumed positive duty due to some special relationship. Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 is a classic example of a duty of care to perform professional services which has arisen due to the said specific relationship and not due to contract. All of these features were also present in Hughes v Percival (1883) 8 App Cas 443, which was one of the first cases in which the same principle was applied to a duty of care. The parties were  living next door  and had a common  party wall. A builder  was carrying out some work in the house of the defendant’s Due to the builder’s act of negligence a cut was formed into the party wall,  which led to the collapse of  both the neighbor’s house living next-door. On its facts, therefore, the case had many of the classic features about non-delegable duties in the law of nuisance. The question mark has never been  seriously put on the fact that  when a patient in the hospital is injured due to the negligence of a nurse it matters whether the nurse is employed by the hospital or by an agency; or if a pupil at school is injured by a teacher it matters whether the teacher is employed by the school or is self- employed.[8] Yet these are not employees of the hospital or school, nor can it be said that their relationship with the school is “akin to employment” in the sense in which the relationship of the individual Christian Brothers to their Order was akin to employment in the case of Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56, [2013] 2 AC 1. The hospital or for that matter any such utilities as school or any educational institutions have undertaken to take care for the patients and  pupils thereof and hence are liable school, and that  hiring of or taking the services of competent people does not give any relief to  the defendant but  it is the duty of school and hospital to see that due care is taken in delegating the duties. The delegates in view of the exercise of powers have to bear in mind that schools and hospitals are responsible if due care is not taken by delegates.

To speak about law of negligence in a general sense, the defendant is liable only for the acts which he has omitted to do or which is done by him negligently. The court does not hold the defendant liable for the wrong done by others in ordinary cases but as far as vicarious liability and non delegable duties are concerned the law of negligence can be said to be fault based.[9]

This is because, as Cory J observed, in the Supreme Court of Canada in Lewis v British Columbia [1997]  a common law in duty of care the defendant does not have to comply with any specific or particular obligation.It is only when any work or operation or act is undertaken by a party  than it is the duty of the party to take due  and reasonable care.The concept expressed as“non-delegable duty” has  been adopted in modern law and has taken the place of ordinary law while dealing with  the cases where more carefulness  is required for the performance of work delegated to others. The  provisions of principles as laid by Lord Sumption has become the conventional way of dealing with all such cases.[10]

Conclusion:

In 2010 Clerk and Lindsel observed that it was not possible and difficult to admit when the non delegable duty arises as English law has not laid any relevant principles in common law to arrive at such a decision. But after the judgement in Woodland V/s swimming teachers association Lord Sumption had laid down certain principles which the lawyers can  rely upon and will help them in applying the principles laid down by his Lordship in respect of non delegable duties  so that a right path is clear to them.

The distinction between vicarious and direct liability depends on whether the defendant’s liability is triggered by its relationship with the plaintiff or the wrongdoer. As that distinction has been gradually eroded through cases such as S v Attorney-General and Lister, vicarious liability has become less strict. However, those cases in which the reasoning has focused mostly on the defendant’s own duties to the plaintiff can be distinguished using breach of non-delegable duties. This preserves the non-faulted character of vicarious liability.[11]

The distinction between non-delegable duties and vicarious liability also helps to keep the latter in its proper context, the employment relationship. Developing the doctrine by reference to the characteristics of this type of relationship, as the English Court of Appeal did in Portsmouth, retains the underpinning rationale of vicarious liability and ensures the test is simple to apply. This approach should be preferred to the vague extension of the doctrine in S v Attorney-General by references to the agency.

It is not suggested that the principles underlying the provisions of non delgable duty are not favorable to the defendant. The main reason for dealing with cases was to apply the provisions of vicarious liability and non delegable duty to work in harmony. Though U.K. Supreme court is very clear, but there are many questions which are still to be solved.

1. When the conditions of vicarious liability do not satisfy the case, can the provisions of non delegable duty be used in case of negligence by employee and can the employer be liable for such negligence.

2. Are vicarious liability and non delegable duty distinctive or apart from each other.

It is suggested that both the concepts should be integrated as they both when applied give the same result which can be practically applied.

References

Barak A, ‘Mixed And Vicarious Liability―A Suggested Distinction’ (1966) 29 The Modern Law Review

Barrett B, ‘Clarification Of Employer’s Liability For Work-Related Stress’ (2002) 31 Industrial Law Journal

Barrett B, ‘Vicarious Liability For Harassment By An Employee’ (2006) 35 Industrial Law Journal

Bell J, ‘VICARIOUS LIABILITY FOR CHILD ABUSE’ (2010) 69 The Cambridge Law Journal

Cave T, ‘The Evolution Of Vicarious Liability: When Are Employers Responsible?’ (2013) 15 Nurs Residential Care

Daly M and Silver C, ‘Flattening The World Of Legal Services? The Ethical And Liability Minefields Of Offshoring Legal And Law-Related Services’ SSRN Journal

Fox D, ‘Non-Excludable Trustee Duties’ (2010) 17 Trusts & Trustees

Giliker P, ‘Vicarious Liability Or Liability For The Acts Of Others In Tort: A Comparative Perspective’ (2011) 2 Journal of European Tort Law

Havercroft I and Reisberg A, ‘Directors’ Duties Under The UK Companies Act 2006 And The Impact Of The Company’s Operations On The Environment’ SSRN Journal

Lockwood G, ‘The Widening Of Vicarious Liability: Implications For Employers’ (2011) 53 Int Jnl Law Management

‘Master And Servant. Non-Delegable Duty Of Master. Vice-Principal’ (1926) 12 Virginia Law Review

McIvor C, ‘The Use And Abuse Of The Doctrine Of Vicarious Liability’ (2006) 35 Common Law World Review

Morgan P, ‘Distorting Vicarious Liability’ (2011) 74 The Modern Law Review

Morgan P, ‘RECASTING VICARIOUS LIABILITY’ (2012) 71 The Cambridge Law Journal

Salvador-Coderch P, Garoupa N and Gómez-Ligüerre C, ‘Scope Of Liability: The Vanishing Distinction Between Negligence And Strict Liability’ (2009) 28 European Journal of Law and Economics

Stern R, ‘Vicarious Liability For Infringement’ (2004) 24 IEEE Micro

‘Strict Liability And Negligence: The Distinguishable Twins Of Products Liability’ (1987) 27 Microelectronics Reliability

TAN S, ‘Vicarious Liability’ (2008) 41 Internal Medicine News

Weddle J, ‘Title VII Sexual Harassment: Recognizing An Employer’s Non-Delegable Duty To Prevent A Hostile Workplace’ (1995) 95 Columbia Law Review

[1] Tabitha Cave, ‘The Evolution Of Vicarious Liability: When Are Employers Responsible?’ (2013) 15 Nurs Residential Care.

[2] Aharon Barak, ‘Mixed And Vicarious Liability―A Suggested Distinction’ (1966) 29 The Modern Law Review.

[3] Graeme Lockwood, ‘The Widening Of Vicarious Liability: Implications For Employers’ (2011) 53 Int Jnl Law Management.

[4] ‘Master And Servant. Non-Delegable Duty Of Master. Vice-Principal’ (1926) 12 Virginia Law Review.

[5] D. Fox, ‘Non-Excludable Trustee Duties’ (2010) 17 Trusts & Trustees.

[6] John Bell, ‘VICARIOUS LIABILITY FOR CHILD ABUSE’ (2010) 69 The Cambridge Law Journal.

[7] Tabitha Cave, ‘The Evolution Of Vicarious Liability: When Are Employers Responsible?’ (2013) 15 Nurs Residential Care.

[8] B. Barrett, ‘Vicarious Liability For Harassment By An Employee’ (2006) 35 Industrial Law Journal.

[9] Pablo Salvador-Coderch, Nuno Garoupa and Carlos Gómez-Ligüerre, ‘Scope Of Liability: The Vanishing Distinction Between Negligence And Strict Liability’ (2009) 28 European Journal of Law and Economics.

[10] ‘Strict Liability And Negligence: The Distinguishable Twins Of Products Liability’ (1987) 27 Microelectronics Reliability.

[11] Paula Giliker, ‘Vicarious Liability Or Liability For The Acts Of Others In Tort: A Comparative Perspective’ (2011) 2 Journal of European Tort Law.

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