AsianScientist (Sep. 20, 2016) – by Nurfilzah Rohaidi – Picture this: you receive a panicked call while at work because your daughter had injured herself at the pool. You find out later that the swimming lesson she had attended, which is deemed mandatory by the school, wasn’t carried out by the school’s employees. Instead, the school had hired an independent contractor to conduct these lessons.
When faced with these facts, you would undoubtedly ask: who is responsible for ensuring your daughter’s safety? The school, the independent contractor, or both?
Low Kee Yang, Associate Professor at the Singapore Management University (SMU) School of Law, attempted to answer this question in a paper that he presented at the Protecting Business and Economy Interests: Contemporary Issues in Tort Law conference held at the Supreme Court of Singapore on 18-19 August 2016.
The paper, titled “Non-delegable Duty of Care: Woodland v Swimming Teachers Association and Beyond”, had previously received a commendation during the Singapore Law Gazette Awards 2015.
Hiring a third party contractor
In this paper, Professor Low focused on a tort law case in the UK where the Supreme Court addressed the thorny issue of non-delegable duty, which refers to an obligation that cannot be outsourced to a third party.
“In the past, even though you had hired independent contractors, the general principle then was that you would not be liable if you had acted with care when selecting these contractors,” he explains.
The situation changes if extra-hazardous activity is involved, but Professor Low noted that Lord Sumption, the Supreme Court judge who passed the ruling in the decision of Woodland v Swimming Teachers Association and others case, did not consider swimming as extra-hazardous.
Nevertheless, Lord Sumption identified this case as a special one, where the defendant was in breach of his personal duty towards ensuring the safety of the claimant, since the independent contractor representing him was acting without due care.
Five defining features of non-delegable duty
Drawing from this case and others in Australia, Lord Sumption came up with a landmark framework consisting of five defining features to determine whether the duty of care in a certain situation would be non-delegable.
“If you can satisfy these five elements, then there is non-delegable duty,” Professor Low explains. “Previously, there was no such unifying framework of principles or criteria.”
Of the five, three are particularly important. Firstly, there must be an existing relationship between the claimant and defendant, placing her in the defendant’s custody or care. In the Woodland case, this was obvious—the student studied at the school. Secondly, the claimant must have no control over whether the defendant delegates his duties to third parties—of which in that case, students have no say in who teaches their lessons. Thirdly, the defendant must have delegated a function that is integral to his positive duty. For the claimant, swimming was part of the school curriculum.
Considering the facts of the Woodland case, Lord Sumption had decided that all those elements were satisfied and that this was a case of non-delegable duty, relates Professor Low.
“Therefore, the school was found to be liable for the victim’s injuries as the swimming instruction was carelessly carried out by the independent contractor. Effectively, the instructor was representing the school and could be seen as an employee or agent,” he says, pointing out that this is a particularly controversial area of tort law. NEXT PAGE >>>
