Non-delegable Duty Research Articles

How Well Do Sinkler and Hopson Float: Vital Operations, Nondelegable Duties, and Agency in FELA and Jones Act Cases?

How Well Do Sinkler and Hopson Float: Vital Operations, Nondelegable Duties, and Agency in FELA and Jones Act Cases?

Challenges in the Evolution of the Doctrine of Non-Delegable Duty

Challenges in the Evolution of the Doctrine of Non-Delegable Duty

Expanding Scope of English Law On Vicarious Liability And The Inevitability Of Conceptual Uncertainty

Vicarious liability is an English law principle that is rooted in antiquity. It entails the transfer the liability of a persons’ negligent or tortious action to another person as a result of the relation relationship existing between both parties. Traditionally, vicarious liability has usually been applied in instances where employee/employer relationship exists between the tortfeasor and the third party and when the tortious act occurred ‘in the course of employment’. Through a case law analysis, this paper examined how vicarious liability principle has transitioned beyond its traditional conception over the ages. For instance, the Wilson and Clyde Case infused the non-delegable duties dimension of vicarious liability. The paper adopts the doctrinal methodology through examination of primary sources such as case laws and secondary sources such as opinion of authors and other scholarly works on the topic. Different jurisprudence has been reflected in the interpretation of the vicarious liability principle in different cases. The study submits that the implication of the inconsistencies in the interpretation of the principle is the uncertainty which has been created as to the true state of the law on the subject.

Respondeat superior in medicine and public health practice: The question is – Who is accountable for whom?

In the healthcare context, vicarious liability applies to hospitals, attending physicians and surgeons, resident physicians, and allied hospital staff. The primary research question explored here is the hospital's vicarious liability based on the doctrine of respondeat superior. Today, resident physicians are held at the same standard of care as that of their attending physicians. They are theoretically accountable for their own acts or omissions. However, in surgery, the attending surgeon – not the hospital or resident – is vicariously liable for acts or omissions of the surgical residents. Correspondingly, courts have held hospitals accountable for independent contractors on three grounds of apparent agency, control test, and non-delegable duty of the hospital for patient care. Interestingly, with anesthesia identified as an independent specialty, which is separate and distinct from surgery, the anesthetist and not the attending surgeon is primarily accountable for anesthesia administered to the patient. Conclusively, the paper offers interesting perceptions and tangents of why the hospital, surgeon, and anesthetist are accountable for the acts and omissions of their subordinates under vicarious liability arising from the doctrine of respondeat superior with support of American and English case laws as examples.

A Million Winslows: private liability of universities for ragging in India

ABSTRACTRagging has become a serious social evil. Millions of university students are ragged in India every year. While a perpetrator can be sued by the victim; it has not dented the escalation of ragging. Holding institutions responsible for preventing ragging is the only way to curb it. This can be by way of both public and private accountability of universities. The paper focuses on the latter. We submit a victim of ragging can sue the university for failure to prevent ragging for breach of the university–student contract, for negligence, under vicarious liability, breach of statutory duty, contravention of a non-delegable duty, and on the basis of misfeasance in public office by a rogue university officer. A private action will have a salutary effect on society, in particular universities.

Outsourcing Beneficiaries: Contract and Tort Strategies for Improving Conditions in the Global Garment Industry

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ANALYSING INSTITUTIONAL LIABILITY FOR CHILD SEXUAL ABUSE IN ENGLAND AND WALES AND AUSTRALIA: VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND STATUTORY INTERVENTION

AbstractThis paper will argue that, in the light of recent case law in the UK and Australia, a new approach is needed when dealing with claims for vicarious liability and non-delegable duties in the law of tort. It will submit that lessons can be learnt from a comparative study of these jurisdictions, notably by reflecting on the courts’ treatment of claims of institutional liability for child sexual abuse. In parallel to decisions of their highest courts, public enquiries in Australia and England and Wales, established to report on historic child sexual abuse and how to engage in best practice, are now reporting their findings which include proposals for victim reparation: see Royal Commission into Institutional Responses to Child Sexual Abuse (Australia, 2017) including its Redress and Civil Litigation Report (2015); Independent Inquiry into Child Sexual Abuse (Interim report, England and Wales, 2018). The Australian reports suggest reforms not only to state practice, but also to private law. This article will critically examine the operation of vicarious liability and non-delegable duties in England and Wales and Australia and proposals for statutory intervention. It will submit that a more cautious incremental approach is needed to control the ever-expanding doctrine of vicarious liability in UK law and to develop more fully its more restrictive Australian counterpart.

Liability of Educational Institutions for Child Abuse

If a teacher abuses a student, is the school authority liable in damages to the student? Over the past 20 years, courts in Australia and England have invariably treated this as a question of vicarious liability. In this paper, I argue that this approach is wrong and disruptive of the principled development of the law of torts. In cases of institutional child abuse, breach of a non-delegable duty of care is the more appropriate ground of liability. The prevailing approach in Australia and England reflects a continuing confusion about and between these two quite distinct forms of liability. This confusion has meant that, in Australia, abuse victims have been denied compensation while, in England, the doctrine of vicarious liability has had to be seriously distorted in order to provide a remedy.

Outsourcing Beneficiaries: Contract and Tort Strategies for Improving Conditions in the Global Garment Industry

Sweatshop conditions have existed since factories emerged as the engine of mass production. Manufacturing led to a system of labor that sweats workers for profit - forcing people to work in unsafe and unhealthy conditions for long hours and poverty wages. At the top of the supply chain in the global garment industry are major multinational brands that outsource manufacturing to contract factories worldwide. Although brands create the environment in which sweatshops thrive by paying factories low prices, they use the fact that the factories are independent contractors as a mechanism for escaping liability for illegal and inhumane working conditions. For decades, workers and worker advocacy organizations have brought claims in U.S. courts in an effort to hold brands accountable for conditions in factories globally. This article provides an overview of some of those cases, as well as a recommendation for the use of contract and tort doctrines as tools to uphold workers' rights throughout the supply chain. With respect to contract doctrine, advocates should look to the promises brands make when they enter into licensing and purchasing agreements with colleges, universities and cities. Additionally, advocates should explore the exceptions to the rule that employers are not liable for the conduct of independent contractors, and specifically render the upholding of workers rights in the global garment industry a non-delegable duty in line with established tort doctrine. The article also looks at the effectiveness of free trade agreements at holding brands legally accountable for worker rights violations. Ultimately the article concludes that only concerted effort on multiple fronts - organizing efforts, litigation efforts, and legislative efforts - will achieve the goal of holding multinational brands primarily responsible for working conditions throughout the supply chain.

Supply Chain Liability: Pushing the Boundaries of the Common Law?

AbstractOn 29 August 2016, in a claim by Pakistani survivors and legal heirs against German retailer KiK for injuries and deaths during a fire at a factory supplying jeans in Karachi, German judges accepted jurisdiction and granted legal aid to the Pakistani claimants to cover the legal fees. The case pending before the German court thus poses the question of supply chain liability. Taking the lawsuit by the Pakistani plaintiffs against KiK in Germany as a case study, this article provides an analysis of the available legal grounds for such liability. Economic changes have ushered in linkages between purchasers and suppliers that call for strong principles of liability – principles that are already embedded in the law but which need fresh articulation and application. English courts have only recently recognised that under certain circumstances, liability might attach to a parent company under the tort of negligence for damage to third parties ostensibly caused by its subsidiary. The KiK case is testing the extension of such liability to certain supply chain relationships. Beyond that, the case is also testing the application of the rules on non-delegable duties and vicarious liability in the supply chain context. Even if the court disagrees with the claimants’ position, the novel arguments advanced in this case are likely to be the starting point for an important debate about the proper fit between traditional tort law and the fast changing commercial and employment relationships of the 21st century.

Delegation of medical activities in acute pain therapy

Acute pain management is an interprofessional and interdisciplinary task and requires agood and trustful cooperation between stakeholders. Despite provisions in Germany according to which medical treatment can only be rendered by aformally qualified physician ("Arztvorbehalt"), aphysician does not have to carry out every medical activity in person. Under certain conditions, some medical activities can be delegated to medical auxiliary personnel but they need to be (1)instructed, (2)supervised and (3)checked by the physician himself; however, medical history, diagnostic assessment and evaluation, indications, therapy planning (e.g. selection, dosage), therapeutic decisions (e. g. modification or termination of therapy) and obtaining informed consent cannot be delegated. With respect to drug therapy, monitoring of the therapy remains the personal responsibility of the physician, while the actual application of medication can be delegated. From alegal perspective, the current practice needs to be stressed about what is within the mandatory requirements and what is not when medical activities are delegated to non-medical staff. The use of standards of care improves treatment quality but like any medical treatment it must be based on the physician's individual assessment and indications for each patient and requires personal contact between physician and patient. Delegation on the ward and in acute pain therapy requires the authorization of the delegator to give instructions in the respective setting. The transfer of non-delegable duties to non-medical personnel is regarded as medical malpractice.

Do Hospitals Owe A So-Called 'Non-Delegable' Duty of Care to their Patients?

It is not uncommon for the duty of care owed by a hospital to its patients to be described as 'non-delegable'. Use of this label suggests that a hospital may be held strictly liable to a patient for the wrongdoing of a third party beyond the circumstances in which vicarious liability might be imposed. To date, no higher court has used the label to impose such liability. Notwithstanding, it was assumed by Lord Sumption in Woodland v Swimming Teachers Association that the duty of care owed by a hospital to a patient could be so described when formulating his test for determining the existence of a 'non-delegable duty of care'. This article challenges that assumption and, in turn, the veracity of the test devised by Lord Sumption.

Medical Teams and the Standard of Care in Negligence

Medical teams are essential to the delivery of modern, patient-centred health care in hospitals. A collective model of responsibility envisaged by team care is inconsistent with common law tort liability which focuses on the individual rather than the team. There is no basis upon which a team can be liable as a collective at common law. Nor does the common law'countenance liability for the conduct of other team members absent some form of agency, vicarious liability or non-delegable duty. Despite the barriers to the adoption of a team standard of care in negligence, there is scope for team factors to have a role in determining the standard of care so that being a team player is part and parcel of what it is to be a competent professional. If this is the case, the skill set, and the standard of care expected of the individual professional, includes skills based on team models of communication, cross-monitoring and trust.

Recent Developments in the Law of Torts in Northern Ireland

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed. Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities. Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel. Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

Convergence in Public and Private Law Doctrines- The Case of Public Contracts

Is it possible for public and private law doctrines to converge in response to contemporary modes of mixed public-private governance? Such an approach has certain attractions. It side-steps difficult and often circular a priori assessments of whether a transaction or body is sufficiently “public” or “commercial”, and it sometimes provides a space in which the countervailing threats of public corruption and private coercion can be weighed. Three examples of modern convergence are identified in relation to public contracts: the law of public tendering; controls on contractual discretion; and the concept of non-delegable duties in tort law which impacts on contracting out.

Court refuses to strike out claim founded on non-delegable duty —GB v Home Office (High Court, 31 March 2015 Coulson J)

Court refuses to strike out claim founded on non-delegable duty —<i>GB v Home Office</i> (High Court, 31 March 2015 Coulson J)

Local Authority Liability for Flooding: Where Should Loss Fall?

Flooding is New Zealand's most frequent natural hazard, the cost of which is outdone only by the recent Canterbury earthquakes. Local authorities are the bodies primarily tasked with protecting communities against flooding through a range of measures including physical works such as stopbanks. This article explores the extent to which a local authority can be liable in tort where those physical works fail, causing damage. Direct liability and non-delegable duties are discussed, the latter addressing whether a local authority can nevertheless be liable having outsourced the construction of flood works to independent contractors. Additionally, whether local authorities should be liable for such damage or whether individual property owners ought to protect their own interests through insurance is discussed. This article recommends that property owners should purchase private insurance, but that local authorities should remain liable at least for their own negligence.

Vicarious Liability and Non-Delegable Duty in Common Law Actions Based on Institutional Child Abuse

This paper provides a review of the current law applicable in NSW to civil actions by victims of child abuse at the hands of those working for institutions such as churches and child care homes, with particular attention to the common law mechanisms by which liability can be sheeted home to the organisations in charge of such institutions.

LIABILITY FOR INDEPENDENT CONTRACTORS IN CONTRACT AND TORT: DUTIES TO ENSURE THAT CARE IS TAKEN

AbstractLiability for independent contractors generally poses few difficulties in the law of contract, whereas in tort it is a vexed question. The difficulties are only compounded by the governing concept: the so-called “non-delegable duty”. This article explains the differences and argues that no easy parallels can be drawn from the contractual position to answer the riddles in tort. Neither does “assumption of responsibility” help. There is undoubtedly a case for recognising vicarious liability for independent contractors when businesses and public bodies alike now outsource so many of their functions. This issue needs to be confronted squarely, not through unconvincing contractual analogies.

Directors’ defence of reliance on professional advisers under Anglo-Australian law

This paper analyses the issue of whether directors may use reliance on professional advice as a defence to a claim for breach of duty to exercise care, skill and diligence under common law or companies legislation in England and Australia. While England and Australia share the same common law tradition and have similar statutory provisions on the standard of care of directors, an English court generally regards a director as acting reasonably when he seeks advice from a qualified and independent professional adviser in a specialist matter within his expertise. In the absence of any conflict of interest, reliance is only unreasonable if the circumstances are so plain and obvious that no prudent person will rely on the advice. In contrast, recent Australian cases, particularly ASIC v Healey, ASIC v MacDonald and ASIC v Fortescue, restrict the circumstances in which directors can rely on professional advisers, even in specialist matters. This paper argues that the difference in approach between the two jurisdictions can be explained on two grounds. First, the Australian cases can be distinguished from the English cases because the former are special situations dealing with matters involving non-delegable duties of care imposed by legislation. Second, the potential outcomes of the breach of the duty of care differ in England and Australia, and this difference has a much deeper, substantive influence on the content of the standard of care. Contrary to academic suggestion, it is suggested that the Australian developments may not always be appropriate in determining the scope of the defence of reliance on professional advice in England.