Such is my barrister’s brain, that whilst reading The Hobbit to my son the other night, I got to thinking about the similarities between non-delegable duties of care and the magic ring featured in the book. In The Hobbit, the ring grants its wearer invisibility and so comes in very handy as Bilbo Baggins continues his quest to recover the dwarves’ lost treasure from the evil dragon, Smaug. As the story unfolds, the ring is also shown to have quite a personality of its own, at times capricious and Delphic, particularly as the saga of the next book, The Lord of the Rings unfolds.
Those two words also seem apt to describe non-delegable duties of care. In fact, “Delphic” is a word Kirby J used in the High Court decision of Montgomery to describe past efforts of that Court to clarify the underlying rationale for non-delegable duties. Indeed, any review of the authorities shows that the distinction between when there should and shouldn’t be a non-delegable duty imposed upon a defendant is far from clear.
Take for example, this passage from the judgment of Justice (Joseph) Campbell in Transfield Services (Australia) v Hall (2008) 75 NSWLR 12 at  as his Honour sought to encapsulate an aspect of Gaudron’s judgment in Lepore:
“Like the majority in Burnie [Port Authority], her Honour was saying that cases where there was a non-delegable duty exhibited a particular characteristic, but was not saying that all cases that exhibited that characteristic were cases where there was a non-delegable duty.”
What can be said with some certainty however is that overall, there has been a general reluctance in this country to expand the categories where a non-delegable duty will be found beyond those prescribed by Mason J in Kondis (ie. hospital/patient, school/pupil and employer/employee).
The stated reasons of the judges of the High Court deciding Montgomery for keeping the categories limited come down to the harshness of the consequences upon a defendant of so doing and that any further expansion may have the artificial consequence of outflanking established common law principles surrounding vicarious liability (see Kirby J at ); in some instances, the strict liability that attaches to non-delegable duties makes it effectively the same as a finding of vicarious liability. Some High Court judges even maintain that a preferable approach would be to simply adjust the applicable duty of care itself, rather than imposing the non-delegable net over a given case. Take for example, the comments of Justices Wilson and Dawson in Stevens v Brodribb Sawmilling (1986) 160 CLR 16 at 42-43:
“The direction taken in this Court has also been away from strict liability for tortious behaviour. There is a preference for the view which is more in harmony with the ordinary principles governing liability for negligence, namely, that the extent of a duty of care will depend upon the magnitude of the risk and its degree of probability…”
The attraction for plaintiffs of course is that a non-delegable duty lifts the standard of care up so high that it makes it much easier for them to get home; somewhat like the ring in The Hobbit. If not strict, it imposes a liability to see that reasonable care is taken – quite a high standard; though if this makes it an impossible standard to meet, a non-delegable duty will not normally be imposed.
Such was the case in Montgomery where the High Court refused to find a non-delegable duty was owed by a local Council for the negligence of its contractor in creating a hazard during footpath installation works because, given it had had such limited involvement in the works, this was a duty that Council would never have been able to meet.
Against this background, I consider any judicial finding of a non-delegable duty outside Mason J’s categories in Kondis to be quite significant. This is what took place in a decision handed down late last year by Justice (Stephen) Campbell in the NSW Supreme Court decision of Hossain v Unity Grammar College Ltd  NSWSC 1313.
Interestingly enough, His Honour’s findings were prefaced by the following (at ):
“And I appreciate that the decision of the High Court in Leichardt Municipal Council v Montgomery evinces what might be regarded as a strong reluctance to extend the established categories of non-delegable duties. If the door has not been slammed closed, it is barely ajar and guarded by a vigilant, juristic sentinel.”
Hossain was a case in which the Plaintiff was seriously injured when a leak caused LPG gas to settle in the ceiling space of a building. It was then ignited when the Plaintiff switched on a light upon entering the room immediately below. The contractor which caused the leak in negligently conducting gas connection and installation works was uninsured and so a number of others were sued, including the head building contractor.
The head contractor’s insurer argued that its delegation of the gas connection works to an ostensibly skilled contractor discharged its duty of care to the Plaintiff. However, his Honour found that more was required of the head contractor. Pointing to one of the key indicia of the existence of a non-delegable duty, “control,” Campbell J found:
“There is no doubt that [the head contractor] has taken advantage of its control of the premises to introduce a dangerous substance namely LPGas and to carry on a dangerous activity in terms of facilitating [its use].”
In his judgment at , His Honour then quoted from Burnie Port Authority (atp. 554), a case in which the High Court found an occupier liable for the damage caused by a fire that escaped from its land, even though it was ignited by someone else:
“In the case of such [dangerous] substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety.’ ”
In the end, Campbell J found that the non-delegable duty in Hossain involved the principal contractor “seeing that reasonable care is [or had been] taken,” which for reasons given in preceding paragraphs, his Honour found it had not.
An interesting side note to this decision is that in Transfield, the decision of Justice (Joseph) Campbell to which I made mention above, Justice (Stephen) Campbell in his capacity as senior counsel for the Plaintiff/Respondent argued that Burnie Port Authority justified a finding that a non-delegable duty should be owed by a head contractor in circumstances where similar factors were at play as those in Burnie.
In Transfield, the head contractor was tasked with maintaining plant and equipment on the HMAS Stirling which it then subcontracted to another. The plaintiff suffered serious injury when a rope he was using to abseil gave way. The rope was supposed to have been properly inspected by the contractor.
The broader argument on the appeal in Transfield was effectively whether a non-delegable duty should be found in circumstances where an inherently dangerous activity (such as abseiling) was taking place in respect of which the head contractor had some “proximity” and/or “control” in relation to the Plaintiff. Faced with an argument put by Campbell SC as he then was, Campbell JA rejected outright that such a generalised notion could form the basis for finding a non-delegable duty existed. In this context, His Honour also expressed the view that Burnie Port Authority ought to be limited to its facts.
Justice Stephen Campbell however relied on Burnie Port Authority as one of the principal foundations for his decision in favour of a finding that the head contractor did owe a non-delegable duty to the Plaintiff, Mr Hossain who had been the subject of negligence where a dangerous substance/activity had been involved.
It will be interesting to see whether this aspect of the decision is appealed but for now the door through which a principal contractor can be found to owe a non-delegable duty of care to an injured third party in certain circumstances remains very much ajar. So too, the non-delegable duty of care ring now glows a little brighter.