When can duties be contracted out?
As acknowledged by Lord Sumption in Woodland v Essex CC, the “English law has long recognised that non-delegable duties exist” but — as Sumption again points out — “it does not have a single theory to explain when or why.”
The doctrine dates back to the 19th century with cases such as Dalton v Henry Angus & Co — a case in which Lord Blackburn asserted:
… a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor.
Subsequent case law, like Honeywill and Stein v Larkin, has affirmed Lord Blackburn’s judgment, and in doing so established the foundations for the doctrine to grow.
Most notably, the doctrine received a wider interpretation in Lord Denning’s judgment in Cassidy v Ministry of Health — a case regarding the liability of doctors depending on the existence of a ‘contract of service’. In his judgment, Denning advocated that a different approach should be taken depending on the employer of the doctor. This ultimately led to his conclusion “that the hospital authorities are liable for [the doctor’s] negligence in treating the patient.” It does not, he said, “depend on whether the contract under which he was employed was a contract of service or a contract for services.”
Over the following year, this approach has been adopted in varying case law including Woodland and X v Bedfordshire CC, where judges have cited Denning’s reasoning and applied it in their judgments.
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The judgments of Blackburn and Denning — in Dalton and Cassidy respectively — have paved the way for modern case law concerning the law on non-delegable duties, most recently with the case of Woodland, and the test formulated by Sumption. The test’s five limbs aimed to clarify the applicability of the doctrine for future cases:
(i) the claimant is a patient or child or some otherwise vulnerable or dependent person;
(ii) there is an antecedent relationship between the claimant and the defendant which puts the claimant in the care of the defendant and from which it is possible to assign to the defendant a positive obligation actively to protect the claimant from harm (as opposed to a duty simply to refrain from harmful conduct);
(iii) the claimant has no control over the defendant’s performance of that obligation;
(iv) the defendant has delegated some part of its function to a third party, who has assumed some custody or care of (and thus also some degree of control over) the defendant; and
(v) the third party has been negligent in the exercise of that delegated function.
Following the establishment of this five-pronged test, it has been successfully applied to circumstances including prisoners, as well as foster children (in JB and BB v Leicestershire CC (unreported)). Stout went as far as to assert that the “non-delegable duty of care thus now joins the ranks of approved bases for liability in negligence, alongside such established categories as the ‘normal’ duty of care, assumption of responsibility and vicarious liability”.
Others are more skeptical. George, for example, questioned the test’s clarity and whether it “operates effectively even in cases we can already see”. Such skepticism was actually also demonstrated by Lady Hale in her concurring judgment in Woodland, as she highlighted “that such judicial statements are not to be treated as if they were statutes and can never be set in stone”.
The most recent case to deal with the issues surrounding the application of the doctrine is NA v Nottinghamshire Council. In his judgment, Males J found that even though the Sumption test was satisfied, he did not find it fair, just and reasonable to impose a non-delegable duty of care on the authority. The appeal by the claimant was dismissed in the subsequent Court of Appeal case, and on the topic of the applicability of non-delegable duties, Lady Justice Black admitted “the whole question… [is] difficult in this case”.
The Sumption approach is no doubt a solid first step to achieving a clearly applicable test. However, future judgments need to clarify the test’s reach, by either amending the Sumption test or formulating a list of applicable circumstances, as seen in the Australian case of Leichhardt Municipal Council v Montgomery.
Omar Alami is a final year law and French student at the University of Bristol.
Rob George, ‘Case Comment: Non-delegable duties of care in tort’, The Law Quarterly Review 2014
Holly Stout, ‘Case Comment: Schools’, Education Law Journal 2014