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 Mr Dobie was third defendant but he died in 2001 and the case against him was withdrawn.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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