Delegable Duty of Care - Coursework Example

Name: Tutor: Task: Date: The area of law under consideration Introduction Andrew Corkhill in his article talks about the non delegable duty of care, which lies under negligence in the categories of the broad law of tort also applicable in Australia. Other categories in the law of tort include statutory torts, nuisance, defamation, intentional torts, and economic torts just to mention but a few. Broadly, by definition, the law of tort is a branch of law that addresses and gives remedies for civil wrongs committed not arising from contractual obligations. (Cooke, 2007). Any individual who suffers legal damage can use the law of tort to seek redress from the tort feasor who is legally responsible or liable for the injuries caused. In a nut shell the law of tort defines what comprises a legal injury and establishes the situations under which a person can be held liable for another’s injury. In the discussion, which is largely extracted from the Case Base Journal articles attached to the question, we are going to start by trying to understand what a non delegable duty of care is concerned with in relation to the article given herein. Better still, we shall discuss the how the non delegable duty of care arises and when does an action of any person qualify to fall in the category of the non delegable duty of care. The discussion shall also entail the problems encountered in the establishment of the non delegable duty of care and how the diverse views related to it are brought to one conclusion. Non delegable duty and circumstances under which it arises Non delegable duty of care is defined as a stringent and personal duty to ensure that reasonable care is taken. This can be extended to mean that a person who owes another a non delegable duty of care can not delegate it to a third person (Commonwealth v Introvigne, 1982). According to Andrew Corkhill in the journal article given, there are four recognized categories which primary non delegable duty is owed. They include the master and servant category, the hospital and patient category, the adjoining owners of land category and the education authority and student category. The essence for the imposition of the duties in these relationships is the imbalance of the power between the parties and more specifically the vulnerability of one of the parties. Nevertheless, the fact that one party owes the other a non delegable duty of care does not mean that they are totally liable for any and all the injuries suffered. This covers situations of intentional wrongdoing and criminal wrongdoing which constitutes an element beyond failure to take reasonable care. If proved beyond any reasonable doubt that act was intentional or criminal in nature the non delegable duty of cannot be cited. All cases should be decided to the extent of negligence involved. In strengthening the concept of the non delegable duty of care, it is important to expand the categories mentioned above for better understanding. In the master servant category, the duty of care owed by the master to the servant is non delegable as it was held in the case Wilson &Clyde Coal Co Ltd v English. The duty brings forth three obligations to the master or the employer which include provision and maintenance of proper machinery, plant, appliances and works, selection of proper and qualified persons to oversee and manage the business, and provision of proper system of working. The non delegable duty of care in the above case arose from avoidance of the doctrine of common employment. The doctrine of common employment was an exception to the rule that a master is liable to the action of his servant committed in the course of the employment (Gibbs, 1995). This rule was later abolished and the defendants can now be held responsible for their actions. The abolishment, however, did not mean tat the masters are now free from any liability from the employees because they have a legal obligation regarding the work, machines, and the safety of the employees. According to the journal article given, an important area in the discussion of the non delegable duty of care would be the development of the concept and treatment of the judges in relation to the duty. Inclusion of the dangerous substance or activity in this context is also of major concern as it will set the framework within which the assessment will be done. It is from here that the assessment of the dangerousness in the manner and nature method will arise. The problem of what constitutes a dangerous substance or activity has for a long time led to lack of consensus. To address this problem we are to look at some discussions and the recommendations put forward by some experts of the law later in the essay. The problems associated with the non delegable duty of care Non delegable duty is a part of the law that has raised concern to lawyers for a time. in the given article (pp 10) it asserts that one of the great concerns in this law is determining what constitutes a non delegable duty of care. After a long review and reference to the case law of Rayland’s v Fletcher, it has been proposed and taken to mean that a non delegable duty arises in a situation where the defendant is in control of the premises and has take advantage of the control to introduce there on or retain there in a dangerous substance or undertake there on activities that are dangerous or allow another person to do one of those things, and the plaintiff has no control of the premises and is thereby exposed to or their properties exposed to the foreseeable risk of danger. If all those condition are met the defendant is held liable under the non delegable duty and the plaintiff can seek redress for the injuries or damages suffered. The article also postulates that another problem that is associated with non delegable duty of care is determination of a dangerous substance or activity. In the past legal experts have not landed to one common definition of what constitutes a dangerous substance thus giving various verdicts differently, making their work look unprofessional. In a past debate held in Burnie Port Authority, the majority expressed vies that dangerous substance or activity does not necessarily mean what is inherently dangerous. It was held that for a substance or activity to pass the test of dangerousness, it must exhibit two characteristics: the magnitude of the foreseeable risk of an accident occurring and the magnitude of the foreseeable potential injury if an accident occurs. This will mean that a person acting reasonably would consider it important to exercise and take necessary care and precaution. The application of the ‘danger calculus’, however, is not accepted in dealing with collaterals. The approach of the majority is what is referred to as the manner measurement method because it is the manner an action is done that determines the way of the determination of what is a dangerous substance or activity. Many other experts of the law like Brenman, in the article page number 12 had concerns and he asserted that the danger calculus should be carried as it was postulated by the majority with the exception that risks associated with collaterals should note be included when determining the magnitude of the foreseeable risk. In his assertion, Brenman postulated the nature assessment method which means that the nature of the action is the reference for the determination of the danger calculus. A problem is also experienced in non delegable duty as far as its nature and characteristic is concerned. Non delegable duty is not a duty to take care; therefore the passing of the liability to persons other than the one who acted is not consistent and supportive. One should only be liable for the actions or conducts of his own. Non delegable care is a duty to ensure care is taken. In remedying for the damages, non delegable duty is taken under vicarious liability and in extension, the strict liability. In strict sense this is not strict liability. As opposed to the normal situations there is nothing that the employer can do to avoid non delegable duty other than not employing any more The recommendation and suggestion for the change of the law (non delegable duty) The issues of contention on the non delegable duty brought about some recommendations to from the concerned experts of the law to ensure that proper judgement is arrived at without relying on personal sentiments about a certain case. It is also a way of making the judgement appear professional and reliable. The major area of recommendations is how dangerousness should be assed. The first option for the recommendation is one that requires the assessment to be done on the basis of manner assessment method. Here, the danger calculus, as given in the article, is stated as an activity or substance which has a combined effect of the magnitude of the foreseeable risk of an occurrence of an accident, the risk being associated with the nature of the activity and the manner in which it is preformed and also the magnitude of the foreseeable potential injury if the accident does not occur is such that that an ordinary person acting reasonably would consider it necessary to exercise special care and precaution as far as the activity or the substance is concerned. The critics have it that it is ridiculous to say that there was no foreseeable risk of the action that has already happened and caused injury to others. It is difficult, for instance, to imagine that two chemicals that are harmless in isolation will cause injury when transported d together in one truck. The issue then which arises is whether a responsible person would have been in a position to foresee the risk posed by the actions. There are however, situation which can be argued in different ways. For instance, if the lesser knew the manner in which the lessee would act if a certain activity is delegated to him then he could have foreseen the potentiality of the risk. At such a situation any person of reasonable capacity given the same condition would be expected to exercise special care and treatment to prevent the damages. In the broad view of manner assessment method, the manner in which an action is done serves as the base for determination of the dangerousness. The recommendation here is to first establish the manner of the action taken then proceeds to look whether it qualifies for non delegable duty of care. The other recommendation given is where the nature assessment method is adopted. In this case, according to the article page 16, an activity or substance is said to be dangerous if it has the combined effects of the magnitude of the foreseeable risk of accident occurring, the risk being associated with the nature of the activity and the magnitude of the foreseeable potential injury if an accident occurs and any person of reasonable capacity would consider it wise to exercise special care and precaution as far as the activity or the substance is concerned. The application of the nature assessment method is a better recommendation than the manner assessment method. The nature assessment method does not impose a liability to the employer due to negligence of employees who were undertaking a harmless activity all together. The only liability an employer can take is one under the nature assessment method because the risk in the activity seems inherent and there is nothing the delegates would have done to minimize the risk if not to eliminate completely. This recommendation would allow the lawyer to arrive at a common judgement as they try to impose the non delegable duty of care. The issues of importance in the non delegable duty The issues of importance in the non delegable duty of care which can be extracted from the journal article given are the determination of the person who is personally legally liable for the negligence of another working in a master servant relationship. The concept of vicarious liability is also of importance to the non delegable duty of care. Of importance also is the distinction of the usage of the above two mentioned terminologies. Vicarious liability extends the rule of strict liability where the relation between the two parties involved is direct one like in the case of Donohgue v Stephenson. On the other hand, non delegable duty is not interested in establishment of the relationship but rather the initial origin of the activity that has brought injury or the potentiality of causing risks. The test of the dangerous ness is also an important issue. It is important to note that the test for dangerousness must focus upon the danger associated with the nature of an activity or substance rather than the manner in which it is performed. This is specifically to impose liability to the right person depending on the circumstances of the case. It is of importance to determine what constitutes an abnormally dangerous activity which is explicitly witnessed in several factors. These will include existence of high degree of risk to person property or land of others, the degree of likeliness of harm, inability to avoid the harm by excising reasonable care, the extent to which the activity is not of common usage, and the extent to which the activity is out weighed by the dangerousness. The above mentioned issues are of importance because they establish the bases of a case and determine which category of the law a certain action falls in. The knowledge of these issues helps to establish the liability as well as who is to bear it. It also establishes the bases of seeking redress .It allow the masters to know he extent to which he is liable towards the actions of his servants. It allows the servants to know the limits of their actions and set the boundaries to which the servants should operate. It would be ridiculous for one to engage in case which one does not know the limitations the bases for the support and the liability imposed upon him by his position either as an employer (master) or employee (servant). The knowledge of the issues also helps one to avoid unnecessary liabilities that can result to great loss of property money and even reputation especially in employer and employee category. In the case of adjoining land owners the rights of the neighbors are protected by ensuring that the adjacent neighborhood only undertakes activities which are not injurious to others. It will also ensure that explosive activities are not taken which can cause the instability of the neighboring structures and even jeopardize the living style of the others around. To cover it all on the importance, it serves the purpose which it was established for. In our case, the non delegable duty of care is an avenue where the behavior and the conduct of the employers, the education authority, the neighbors and the hospital management are held liable for the negligence and actions of unprofessional of the their staffs. It is expected that their duty starts immediately they agree to take the service required by their employees which is not delegable to the workers. My opinion on the recommendations Whether one agrees with the recommendations or not, is a question of whether the same recommendations serve the purpose of their proposition. The recommendations were brought forward to make clear the non delegable duty. They are supposed to specify when a non delegable duty of care arises, how to recognize it, and to who the responsibility should be held upon. The recommendations should give the solution on what constitutes a non delegable duty of care, and the in the context of non delegable duty, where dangerous substances or activity are held, it should give a clear definition of what a dangerous substance or activity is. Also important in this context is how to measure or assess the danger and coming up with a harmonized conclusion of what is referred to as the danger calculus. In my opinion I agree with the recommendations as they seem to serve their purpose of solving the issues arising. First the recommendation solves the problem of what constitutes a non delegable duty. It recognizes the fact that the master is not always supposed to be liable for the actions of their servants even where the negligence was foreseeable and avoidable. It is therefore recommendable that the masters should ensure competence and professionalism of his servants which will help to reduce the liabilities of the master as provided by the law. The main task of the master is to ensure correct and proper maintenance of machines the place of satisfaction of the servants. Secondly, the recommendations state clearly what a dangerous substance is and also how to measure the degree of the dangerousness. The recommendations are that the danger should be assessed by the manner assessment method or the nature assessment method. In the former method, the manner of the substance or the activity is the one that determines what is dangerous or not, while in the latter the nature method the dangerousness of the substance or activity is brought by the inherent nature of risk. In the view of the two methods mentioned above about the danger calculus, it is recommendable that the test for dangerousness must focus on the danger associated with nature of an activity or the substance rather than the manner in which it is performed or used. The assessment of the dangerousness using the nature assessment method has been recommended because it serves a better purpose than the manner method. Only the unavoidable situations of an activity that can confer liability to the masters and not any foreseeable risk would have been avoided. Conclusion In conclusion the non delegable duty of care remains a volatile area of great concern and a major topic of discussion which requires sobriety and experts of law to address the various facets of the concept. Many other suggestions and recommendations should be encouraged to make the concept of non delegable duty especially in relation to dangerous substance or activity is more uncontroversial. Works cited: Cooke, J. Law of Tort. 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