Date: Tue, 21 Jan 2003 10:45:23

From: Robert Stevens

Subject: Dubai Aluminium v. Salaam

Nick McBride wrote:

The most remarkable thing about the Lister case is that the notion of a non-delegable duty of care was not discussed at all in that case - for instance, counsel for the defendants in that case did not attempt to distinguish Morris on the basis that liability in that case was based on the defendants' having been put in breach of a non-delegable duty of care by their employee; instead they argued that the facts of Morris were 'very far from those of the instant case' ([2002] 1 AC 215, 218). And yet, while the concept of a non-delegable duty of care was not mentioned in Lister, the House of Lords' reasoning in favour of finding the defendants liable in that case was identical to the reasoning a court would employ in finding a defendant liable in a non-delegable duty of care case: the defendants had a duty to look after the plaintiffs, the defendants gave the caretaker the job of looking after the plaintiffs and the caretaker failed to do that job when he sexually abused the plaintiffs. The reasoning of the House of Lords in the Lister case - and their failure to keep separate the ideas of vicarious liability and personal liability for breach of a non-delegable duty of care - is very effectively criticised by Tony Weir in his new book on Tort Law (2002), pp 103-104.

I agree with much of this but I think Nick is being rather harsh on the HL in Lister. I hesitate because I am pretty sure that Nick knows more about tort law than I ever will but here goes.

The phrase "non-delegable duty of care" is misleading. What Nick is suggesting is that the defendants should have been (and were) strictly liable in respect of the care provided through others. It should not matter whether the 'others' were employees or independent contractors. Examples of this principle:

1. A entrusts goods to B. B employs an independent contractor C to look after the good. C steals them.

2. A highway authority employs an independent contractor to repair a road. The independent contractor negligently injures a road user.

3. A employs B to work with an independent contractor C at the same site. B is injured due to the negligence of C.

Why is the defendant held liable in each of these cases, what is the cause of action? Assuming that the defendant has not been careless in the selection of the independent contractor, negligence is not possible. Vicarious liability, at least as properly understood, is unavailable as the person who has caused the loss is an independent contractor and not an employee. Stating that there is a 'non-delegable duty of care' does not identify a cause of action but merely asserts that the defendant should be strictly liable.

In each of the three examples given causes of action could be identified (1. breach of duty as bailee; 2. breach of statutory duty; 3. breach of contract and/or breach of statutory duty to provide a safe system of work). I am not sure that this could be done in Lister. The defendants ran a school to which children with emotional and behavioural difficulties were sent by local authorities. Children were abused by a warden employed by the defendant. If vicarious liability is excluded what was the cause of action against the school? Trespass to the person is ruled out, this act was only carried out by the warden. Negligence was not found. The claimants had no contract. The defendants were under no statutory duty and a direct claim by the children would probably not have been allowed on this ground even if they were.

It would, of course, have been possible for the House of Lords to identify a new cause of action. Strict liability for the care of children you have assumed responsibility for, perhaps. This was not, as far as I can see, argued for. It is, of course, always important to distinguish between personal and vicarious liability but you have to identify what the nature of the personal liability is.

For a different view see:

http://cwx.prenhall.com/bookbind/pubbooks/ema_uk_he_mcbride_tortlaw_1/chapter1/medialib/case9.doc

I don't think children are the same as mink stoles.

Robert Stevens

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