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Finding of Non-Delegable Duty of Care Breaks Boundaries for Children By Roger Walter | September 2008 Area of Expertise | General Insurance

Summary In this month’s decision in Fitzgerald v Hill1 it was held that a taekwondo school operator was negligent by reason of his breach of a non-delegable duty of care to one of his pupils. This is the first time that an Australian appellate court has ventured outside the sort of institutional relationships encountered in areas like health and education to find a child the object of a non-delegable duty of care.

Who Does This Impact? Public liability insurers and underwriters, schools, sport & recreation clubs and others having the care of children.

What Action Should Be Taken? Risk assessments undertaken in respect of entities responsible for conducting activities with children placed in their care need to be conducted on the assumption that a nondelegable duty of care will probably be found to exist, even if the perceived hazard is off site. Care must also be taken not to confuse absolute liability with a liability arising from breach of a non-delegable duty.

Background Case Law The High Court of Australia in 1982 in The Commonwealth v Introvigne2 expanded upon Kitto J’s exposition of the non-delegable duty of care in the 1964 case of Ramsey v Larsen3 in which the High Court considered whether the government could be held legally responsible for a school teacher’s negligence causing injury to a pupil who had fallen out of a tree at school. The majority in Ramsey found the government liable on the basis that vicarious liability was established, but Kitto J analysed the liability on the broader basis of a non-delegable duty of care4. In Introvigne a high school pupil had been swinging off the rope attached to a flagpole while skylarking in the school quadrangle before school. Soon after he had stopped swinging and without warning, the pulley fastened to the top of the flagpole became detached and fell on him. Mason J, with whom Gibbs CJ agreed, noted: ‘The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. … There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J in Ramsay v. Larsen [(1964) 111 CLR, at p. 28]. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.’5

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Finding of Non-Delegable Duty of Care Breaks Boundaries for Children by Roger Walter

Then in 1984 in Kondis v State Transport Authority6 High Court Justices Mason, Brennan, Deane and Murphy JJ found that an independent contractor’s failure to adopt a safe system of work amounted to a breach of an employer’s non-delegable duty to provide a safe system of work. Mason J, with whom Deane and Dawson JJ agreed, observed in respect of non-delegable duty of care: ‘In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. ... The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.’7

In the more recent High Court case of New South Wales v Lepore8, Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ (McHugh J dissenting) declined to extend the non-delegable duty of a school authority to intentional criminal conduct (sexual abuse) committed by a teacher employed by the school authority. In the joint judgment the following observation was made: ‘In cases where the care of children, or other vulnerable people, is involved, it is difficult to see what kind of relationship would not give rise to a non-delegable duty of care. It is clearly not limited to the relationship between school authority and pupil. A day-care centre for children whose parents work outside the home would be another obvious example.’9

The Facts in Fitzgerald v Hill In Fitzgerald the plaintiff child was eight years old and a member of a taekwondo class in Belgian Gardens, Townsville at St Mark’s Hall. He was taken with the class on a run by the instructor, Mr Dobie. Led by Mr Dobie, the class members were running along the side of a road at dusk (about 7.30 pm) when the plaintiff was struck by a vehicle driven by Mr Hill. On 31 August 2007 the trial judge gave judgment for the plaintiff in the sum of $730,850.93 against Mr Hill, his insurer and the owner and operator of the taekwondo school, Mr Ivanov. Mr Dobie was third defendant but he died in 2001 and the case against him was withdrawn. There was no employment relationship between Mr Dobie and Mr Ivanov, so vicarious liability on the basis of employment was not a finding that was open to the court. Mr Ivanov conceded at trial that he would not have acted as Mr Dobie had in not gathering all the students together to cross the road as one group and that it was unsafe to take a group of children as young as eight for a run along the side of a road at dusk.

Breach of Non-Delegable Duty Established Against Taekwondo School The Queensland Court of Appeal had little difficulty finding that Mr Ivanov as owner and operator of the taekwondo school had breached a non-delegable duty of care. The following commentary about the principles outlined above was included in the leading judgment delivered by McMurdo P: ’Whether the duty arises in a particular case will depend on the relationship between claimant and defendant. It is well established that this non-delegable duty is owed by a school authority to a pupil and by a hospital to a patient. Factors which support the existence of the duty include whether the relationship is one where the defendant has a high degree of control, the claimant is vulnerable, or the claimant

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has a special dependence on the defendant. The categories of situations where a non-delegable duty of care is owed are not closed, but courts should exercise care in extending them. Of the existing categories of relationships where the non-delegable duty of care has been clearly found to arise, the most analogous to the present facts is that of school authority and pupil as discussed in Introvigne. A case where the Introvigne category has been applied to a different but analogous situation not dissimilar to the present is Robertson v The Hobart Police & Citizens Youth Club Inc. There, the 12 year old Robertson was injured on a trampoline at the defendant’s premises. Relying on Introvigne, the defendant’s relationship to Robertson was found to be analogous to that of school teacher and pupil, the defendant having “assumed that duty”. Robertson has since been followed in Shaw v Commonwealth of Australia and Lee-Anne Duncan by her next friend Noel Duncan v Trustees of The Roman Catholic Church for The Archdiocese of Canberra and Goulburn although both those cases were clear examples of the pupil-school authority relationship.’ (footnotes omitted)

Among the various other matters raised on the appeal was the issue of whether it was open to the trial judge to proceed to find breach of a non-delegable duty of care when no reference to a non-delegable duty or its breach appeared in the pleadings. The Queensland Court of Appeal saw no merit in this point. McMurdo P observed: ‘A non-delegable duty was not specifically pleaded in Introvigne and it did not have to be here. The facts on which the claim against Mr Ivanov based on his non-delegable duty to Sean were sufficiently pleaded in the statement of claim to enable the court to apply the law to facts proved: Williams and Williams v Cadillac Transport Repairs Pty Ltd. The purpose of pleadings is to ensure each party knows the case to be met: Water Board v Moustakas. Sean’s pleadings served that purpose in respect of the claim of non-delegable duty against Mr Ivanov.’ (footnotes omitted)

Implications This decision will be of interest to recreational and sporting clubs and other less formal organisations that take on responsibility for children participating in their various activities. The vicarious liability so readily established in the employment context is not relevant to many of the activities undertaken in these organisations, which rely heavily on volunteers. This most recent application of the principles associated with the concept of a non-delegable duty of care will probably not go on appeal to the High Court. Even though it is a relatively novel case in that it involves an injury outside formal education and away from the ‘school’, it is not a surprising development. The relative scarcity of cases like this is no doubt due mainly to the fact that people involved in managing things like child-minding centres, sports clubs and surf lifesaving saving clubs invariably do go to great lengths to ensure the safety of children in their care.

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Finding of Non-Delegable Duty of Care Breaks Boundaries for Children by Roger Walter

Endnotes 1

QCA [2008] 283

2

[1982] HCA 40; (1982) 150 CLR 258

3

[1964] HCA 40; (1964) 111 CLR 16

4

(1964) 111 CLR at p. 28

5

(1982) 150 CLR 258 at 269 & 270-271

6

[1984] HCA 61; (1984) 154 CLR 672

7

(1984) 154 CLR 672 at 687

8

[2003] HCA 4; (2003) 212 CLR 511

9

(2003) 212 CLR at 534

For more information, please contact:

Roger Walter Partner T: 02 8257 5736 roger.walter@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Insurance & Financial Services | Commercial Disputes | Workers Compensation | Business & Property

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Finding of Non-Delegable Duty of Care Breaks Boundaries for Children