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11
Through Legal Eyes
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Canadian Perspective
A duty to ensure care is taken
In Canada, like most common law jurisdictions, the principle of
non-delegable duty is used to impose liability for negligence on
Party A in circumstances where the performance of a particular
task has been delegated to Party B. This special duty is not
vicarious. It is personal. It is, therefore, the strict liability to
ensure reasonable care is taken. Accordingly, this duty is often
described as not just a duty to take care, but a duty to ensure
that care is taken.
The leading case in the matter of non-delegable duties in Canada
is Lewis v. British Columbia , where, in 1997, the Supreme Court
of Canada found the Ministry of Transportation and Highways
negligent for work completed by independent contractors. The
Supreme Court reviewed the relevant statutes and found that the
Ministry had paramount authority over highway maintenance.
Additionally, the Ministry was to personally manage and direct
all maintenance projects. As a result of this mandatory duty, the
Ministry was liable for breaching its non-delegable duty when
the requisite care was not taken by its contractors.
A recent case dealing with the duty of care relating to a not-at-
fault party is Newfoundland and Labrador (Minister of Health
and Community Services) v. McEvoy . The Supreme Court of
Newfoundland and Labrador found that a non-delegable duty
may be imposed by reason of the existence of statutory duties
or by operation of common law; when the activity to be carried
out has an inherent risk of danger; and when the relationship
between the defendant and the victim is such as to warrant
the imposition of liability. The court, therefore, appears to
be opening the door for liability beyond the historic statutory
confines, and seems to be showing a willingness to impose
liability on more objective grounds.
The recent Queensland Court of Appeal decision in Fitzgerald v.
Hill , goes further than Canadian courts have so far ventured.
Canadian cases have dealt with the more institutionalised
relationships of healthcare, education and Crown liability when
finding the existence of a non-delegable duty of care. However,
Canadian courts typically pay attention to developments in
Australian jurisprudence and it is probably only a matter of
time before the current boundaries of non-delegable duty are
expanded. Obvious areas in which the law of non-delegable
duties might be developed would be in the provision of children’s
day care, sporting clubs and other recreational activities.
Graeme Mew is a partner with Nicholl Paskell-Mede LLP
in Toronto (
gmew@npm.ca
) He is also an arbitrator for
the Court of Arbitration for Sport and a Judicial Officer
for the International Rugby Board.
Lewis v. British Columbia,. [1997] 3 S.C.R. 1145
[1997] 3 S.C.R. 1145
[2008] N.J. No. 112 at para. 63.
[2008] QCA 283.
UK Perspective
Already wary, but so far unscathed
When asked to provide a UK perspective on the impact of
the
Fitzgerald
judgement, the immediate difficulty faced is
that “Breach of Non-Delegable Duty of Care” (BNDD) is not a
concept specifically dealt with by UK courts, and it appears that
our Australian counterparts have been wrangling over the issue
in a way which has not been echoed here. There are, of course,
situations in which its spirit has been upheld here – undeniably
a hospital (Trust), for example, owes a non-delegable duty
of care to ensure safety and quality of care for its patients,
irrespective of the tort arising from the actions of one doctor
without the knowledge or intervention of those ultimately
responsible with dealing with the civil claim. Similarly, the courts
here have engendered the ethos of BNDD in situations where,
for example, a sports centre might be successfully sued as a
result of the unsafe coaching provided by a trampolining coach
in one of its gyms.
That we have managed to go about our business without
specifically addressing “Non-Delegable Duty of Care” does not
mean that the development in
Fitzgerald
is irrelevant to the
UK in a wider sense. Most people would have little difficulty in
acknowledging the duty of an employer to provide a safe system
of work, or the duty of a hospital to ensure the physical safety
of its patients. The idea of a school authority having the same
duty towards its pupils, in circumstances which at face value
seem separate from the function and purpose of the school,
is perhaps more controversial, but if that is established (as it
appears to have been in Australia), it is unsurprising that BNDD
could be extended to a Taekwondo school in the context of a
situation like that faced by the Defendant in
Fitzgerald
. What
is of potential concern is that most of the people who teach
Taekwondo (and countless other extra-curricular activities) to
children are likely to be volunteers, and the growing number of
ways to sue the clubs they provide services for might mean that
the pool of volunteers will begin to dry up. Whilst we may want
the utmost safety for our children, it would be unfortunate if
these extra-curricular activities were rendered impractical such
that no-one is prepared to offer them anymore.
Despite these potential concerns, the reality (in the UK at least)
is that most sports clubs and instructors are now so wary of
complaints and allegations of negligence that the safety of their
pupils (particularly children) is at the forefront of their minds
(or at least it should be?!). Whether or not the application of a
concept like BNDD would make much difference to the litigation
climate here is perhaps, therefore, questionable. Having said
that, we share the view indicated by the Australian court that
caution should be exercised about widening the net any further.
This debate has not been something to greatly occupy the
judiciary in the UK so far, but we would not be surprised if it
reaches these shores sooner rather than later.
Steven Hooper is a solicitor with Eastwoods Solicitors,
London.