Non-delegable duties – Must there be blame for a claim?

Thea Wilson of 12KBW assesses the current state of play with non-delegable duties, it being some ten years since Woodland v Swimming Teachers Association [2013] UKSC 66.

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In principle, liability in tort depends on proof of a personal breach of duty (Woodland v Swimming Teachers Association [2013] UKSC 66, [3]). Vicarious liability and liability for non-delegable duties represent exceptions from that general principle, exceptions whose source is more based in policy than legal principle. Over the past 20 years, there has been a massive shift in how the law of personal injury approaches non-fault liability. Whilst much of this change has been seen in the law of vicarious liability, there has also been a shift in the development of liability for breaches of non-delegable duties of care. But how much does this shift assist a personal injury claimant with an impecunious tortfeasor?

History

Originating in the law of nuisance in the nineteenth century and established in Australia by the 1980s, the notion of a non-delegable duty of care was not without support in England and Wales in the twentieth century (most notably in obiter dicta from Lord Greene MR and Denning LJ), but such support was muted. As late as 2005, in A (A Child) v Ministry of Defence [2005] QB 183, Lord Phillips MR said that the circumstances which give rise to non-delegable duties of care “are not readily identifiable in English case law” [29].

All this changed in Woodland v Swimming Teachers Association. Influenced by policy considerations and the belief that innocent victims, particularly of catastrophic accidents or abuse, should be able to obtain compensation from defendants with the funds or insurance to meet the claim, a principle of a non-delegable duty of care was distilled from the caselaw by Lord Sumption who delivered the leading judgment. At paragraph 23 of Woodland, Lord Sumption set out the five defining features which characterise cases where a non-delegable duty of care exists:

In his speech, Lord Sumption was clear that the circumstances in which a non-delegable duty of care would be found were exceptional. The few reported personal injury cases to reach the higher courts in the eleven years since Woodland seem to have proven this.

Current state of play

Aside from clinical negligence cases (e.g. Razumas v Ministry of Justice [2018] EWHC 215 (QB) and Hughes v Rattan [2021] EWHC 2032 (QB) – for more detail on the latter see Mary Newnham’s blogpost “Getting your teeth into non-delegable duties and vicarious liability”), there have only been a few cases in the last ten years in England and Wales in which non-delegable duties were seriously raised, and only in Carr v Brands Transport Ltd v Trax (Coventry) Ltd [2022] EWHC 3167 (KB) was this done successfully. For successful arguments in Northern Ireland and Scotland, see respectively Smith v NFU Mutual Insurance Society Limited [2019] NICA 63 and Grubb v Shannon 2018 S.L.T. (Sh Ct) 193.

Following Woodland, the Supreme Court considered the issue of non-delegable duties in Armes v Nottinghamshire County Council [2017] UKSC 60. The claimant alleged historic physical and sexual abuse at the hands of foster carers in whose care she had been placed by the defendant local authority. The claimant (although ultimately successful on the issue of vicarious liability) lost on the issue of non-delegable duty in the High Court, Court of Appeal and Supreme Court. The courts rejected the notion that the statutory duty on the local authority to ensure the day-to-day care of a child in foster placement, under the Child Care Act 1980, was a duty to ensure that no harm came to the child in the course of that care. Lord Reed emphasised that non-fault tortious liabilities were exceptional and had to be kept within reasonable limits [32]. Whilst Woodland identified the circumstances where a non-delegable duty was fair, just and reasonable, its five factors were not set in stone. The critical question was “whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements”  [37]. The Court ruled in favour of the latter alternative. To apply a non-delegable duty here would conflict with statutory duties owed by the local authority and could place the local authority in a position of being strictly liable for harm done to a child placed with its own parents.

In SKX v Manchester City Council [2021] EWHC 782 (QB), Cavanagh J considered a claim for damages for personal injuries arising from historic childhood sexual abuse carried out by the Chief Executive of a privately run children’s home to which the claimant had been sent whilst under the defendant’s care. It was not alleged that there was any fault on the part of the local authority in sending the claimant to the children’s home nor in their monitoring of the home. After rejecting the claimant’s case on vicarious liability, Cavanagh J turned to the question of non-delegable duty. Drawing particular assistance from Armes, he held that whilst there were some factual differences between the cases, the same critical question and the same reasoning applied. The local authority’s duty was discharged, not delegated, when the claimant was placed in the children’s home and no strict liability should be imposed.

The facts of Carr v Brands Transport Ltd v Trax (Coventry) Ltd were very different from Armes and SKX. The claimant was the sole director and principal shareholder in the defendant company, Brands. As he was in the process of loading cars onto the top deck of a large double-decker car transporter, it is believed that he leant on a safety rail which gave way and allowed him to fall to the ground and suffer catastrophic brain injury. Knowles J held that the cause of the negligence was a combination of fault by the claimant and by an independent contractor, S, who worked as transport director. The defendant company was found not to be vicariously liable for S’s failures, but a non-delegable duty of care was found. The claimant was accepted to have been an employee of the defendant, following oral argument. Knowles J agreed with the claimant that non-delegable duties were owed by the defendant to the claimant via two routes. First, he found that it was well recognised that an employer’s duty of care towards its employees is non-delegable and therefore the claimant fell into the second broad category of non-delegable duty identified by Lord Sumption in Woodland. Whilst the issue could have been decided on this alone, he went on to hold that, second, he “broadly agreed” with the claimant’s case that the five criteria set out in Woodland were met. In respect of these, Knowles J held as follows:

1. The independent contractor, S, was conducting a statutory function without which the defendant could not lawfully operate. He knew that although the claimant was enthusiastic, keen to learn, and had done his research, he relied on S heavily if not entirely. He was therefore found to be vulnerable.
2. Knowles J considered that “the antecedent relationship placing the Claimant in the charge or care of his employer at work arose from the technical and specialised nature of the transport requirements which directly impacted upon the Claimant’s safety whilst at work on a specialised HGV [and] … that this gave rise the assumption of a positive duty to protect the Claimant from harm as the Claimant, whilst engaged in working at height, was almost totally reliant upon the positive steps required to be taken by his employer”.
3. Only S could perform the obligations required.
4. He had complete autonomy.
5. It was an integral function to the business, and S was negligent in the performance of the very function delegated to him.

The Court rejected an argument that the defendant could not be liable to its sole director (the claimant) when the accident was through his own fault (Brumder v Motornet Service and Repairs Ltd [2013] 1 WLR 2783), but found the claimant 40% contributorily negligent.

Whether this finding stretches the law on non-delegable duties appropriately or takes it too far remains open for argument. Refusing permission to appeal the judgment in Carr on other grounds, Whipple LJ held that the appeal had no prospects of success regardless of the merits of the argument on the issue of delegable or non-delegable duties ([2023] EWCA Civ 1303). The desirability of bringing the case to a conclusion outweighed considerations of whether the point was properly arguable in its own right. She held that she had left “open to another day, and possibly to another case, the argument that the judge got his law wrong on ground 3 [delegable/non-delegable duties] … It would be easy to point out in any subsequent case that the Woodland analysis was not critical to the outcome of this case (for reasons I have already outlined) and that permission to appeal was refused for other reasons.” ([2023] EWCA Civ 1303, [26]-[27])

Conclusion

Whilst vicarious liability doctrine since 2013 has developed apace, a similar evolution in the applicability and principles of non-delegable duties of care has not occurred. Both arguments are often raised in the alternative in the same cases, but clearly there is a fundamental distinction between non-delegable duties of care and vicarious liability. The former depends upon the relationship between a claimant and defendant independent of the tortfeasor; the latter on the relationship between the defendant and the tortfeasor. The existence of a relationship of vicarious liability neither precludes nor necessitates a finding of non-delegable duty of care. Whilst there is no harm in raising non-delegable duties in the appropriate case, and the finding in Carr may be encouraging, claimants in personal injury should be aware that such arguments will rarely be successful.

Thea Wilson