Negligence: Non-Delegable

Question 1

Definition?

Answer 1

• A person owing a duty must take a reasonable care of a person who is owed a duty, to control people or property who are under the person’s care. Kondis v State Transport Authority

Question 2

EMPLOYER/ EMPLOYEE

Answer 2

• An employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employees and the employee has no choice but to accept and rely on the employers provision and judgment in relation to these matters. Kondis v State Transport Authority

Question 3

Hospital/Patients

Answer 3

• Hospitals owe a non-delegable duty to their patients. Samos v Repatriation Commission
• Also applies to outpatients Roe v Minister of Health

Question 4

School/Student

Answer 4

• Schools owe a non delegable duty of care to students Commonwealth v Introvigne

Question 5

Occupier to contractual entry with hazardous material

Answer 5

• The owner of a premises owes a licensee a non delegable duty of care Burnie Port Authority v General Jones

Question 6

Not recognised

Answer 6

• Road Authorities to Road users Leichardt Municipal Council v Montgomery

Question 7

Inferred from Circumstances

Answer 7

• A special duty will arise because the person on whom it is imposed has undertaken the care, supervision or control of person or property of another or is so placed in relation to that person or property to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. Kondis v State Transport Authority
• The central element of control is a common element Northern Sandblasting v Harris
HOWEVER
• The court is reluctant to recognise new categories of non-delegable duties in the absence of general governing principle Leichardt v Montgomery

Question 8

For Non-Delegable Duties

Answer 8

• If a duty is characterised as non-delegable, the defendant has a duty to ensure reasonable care is taken. Kondis v State Transport Authority
2 APPROACHES
• Liability is strictly applied → automatically liable if you show a duty of care but Lapore says you still need to show breach
• Better view is that fault is required on basis of defendant Lapore
• A plaintiff can NOT sue for breach of non-delegable duty if the action is intentional Samin v Queensland
• If there is no evidence of fault on the part of the part on which the duty is imposed, there is no liability. Rich v Queensland (FAULT APPROACH)
• It is not a promise to indemnify plaintiff against injury or harm it is a duty requiring party to take reasonable steps to prevent harm. Rich v Queensland