What is a Non-Delegable Duty?
Non-delegable duties allow the defendant to be liable for the actions of a third-party despite not being negligent themselves. The other way a defendant can be liable for someone else’s actions is vicarious liability.
When Will a Non-Delegable Duty Be Owed?
The law on non-delegable duties was previously diffuse and not well-united. The Supreme Court in Woodland v Essex County Council  UKSC 66 recently unified the law and created a general test to determine whether there is a non-delegable duty, though they did not rule out the creation of new non-delegable duties in future.
A non-delegable duty arises and is breached where:
- The claimant is in a relationship of dependence on the defendant;
- That relationship existed prior to the tort and was independent of the tort;
- As part of the relationship, the claimant was under the defendant’s custody or care, and the defendant assumed responsibility to protect the claimant from harm;
- The claimant had no control over how the defendant protected them;
- The defendant delegated the exercise of their responsibility to protect the claimant to a third-party;
- The third-party was negligent.
However, even when these criteria are met the courts might refuse to impose a duty if it is not fair, just and reasonable: NA v Nottinghamshire County Council  QB 739.
Common Examples of Non-Delegable Duties
Employers owe their employees a non-delegable duty to provide a safe system of work: Paris v Stepney  AC 367.
Teachers and other people entrusted with supervising children owe those children a non-delegable duty of care: Woodland v Essex County Council  UKSC 66.
Prisoners & Detainees
Prisons and immigration detention centres owe a duty of care to those detained by them: GB v Home Office  EWHC 819 (QB).
Historically, the law recognised a non-delegable duty to avoid causing harm in the performance of ‘extra-hazardous activities: Honeywill & Stein v Larkin Bros  1 KB 102. This duty has been controversial, however, and Lord Sumption in Woodland v Essex County Council  UKSC 66 argued that it was arbitrary and might be abandoned in a future case.
It was also historically the case that occupiers were under a non-delegable duty to ensure that damage is not caused to another by reason of a fire being lit on his land: Balfour v Barty King  QB 496. This duty was not mentioned in Woodland and so still appears to be good law.