A duty of care can arise in a number of ways. It can exist in both your work and personal life. Duties of care must be preserved. A failure to maintain any duty of care can result in a tort or civil wrong. One of these duties is a non-delegable duty of care. A non-delegable duty of care is a duty of care owed towards a person or group of people which cannot be assigned to someone else or another entity. This means that the entity with the duty of care must also ensure that others take reasonable care, since one cannot discharge their duty by ‘delegating’ or transferring it to others. For example, an entity owing a non-delegable duty can be liable for the wrongdoing of others even if they are independent contractors. In this article, we’ll discuss when a non-delegable duty of care will arise.
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Instances where this might arise
Non-delegable duties of care exist beyond normal professional standards of care. Examples of non-delegable duties of care exist in the following situations:
- Between an employer and their employees
- A hospital’s care of its patients
- The responsibility a school has over its pupils
Elements at law
In a court, the following elements would need to be satisfied to establish that a non-delegable duty of care exists:
- Control and responsibility – the defendant must have had some control over the plaintiff or the plaintiff’s property
- Vulnerability – where the plaintiff relied on the defendant to ensure that care had been taken
- Criminal conduct is exempted – the defendant cannot be liable for harm caused by someone else’s criminal conduct
Criminal conduct
The law holds the view that an entity cannot be liable for the criminal conduct of others. However, if the entity did not take reasonable care to mitigate such conduct, then liability may exist regardless of the proscribed conduct of others. For example, if an employer fails to discipline staff for proscribed conduct and take the reasonable steps to prevent other staff from harm, the employer may be liable.
Important steps for businesses
Employers have a non-delegable duty of care over their employees. Businesses can also have a non-delegable duty of care over their customers in instances where the customers are vulnerable. The customer need not be ordinarily vulnerable, but just in the context of the activity they are engaging in under the care of the entity that owes the duty. Accordingly, this may arise where services pertain to medical or health issues, transport, childcare, education, and recreational activities. Businesses can preserve their non-delegable duties in the following ways:
- Training staff well
- Using complaints channels
- Disciplinary procedures
- Safe work conditions for staff and customers
- Clear and obvious warnings and rules
- Consult with an employment lawyer for advice on duties owed to employees
- Read about civil liability laws
- Responding to problems promptly
Making sure you know when duties exist, and how best to uphold them is an important part of life. As a business owner, you are more likely to owe more care towards others. Without knowledge of these duties, you can risk breaching them. If you are unsure about what duties may apply to you in your business, it may worthwhile to consult with with a business or torts lawyer.
