Contractors of all sizes especially those engaged in public sector contracts are likely to face more rigorous scrutiny.  The Supreme Court has widened the duty of care by developing further the principle of a non delegable duty of care.  A public body or any other organisation can not transfer a non delegable duty by engaging a competent contractor.  This does not relieve the contractor of the appropriate duty of care for the work to be undertaken but the organisation invested with the personal duty of care can not pass the buck.

This will affect organisations in several ways:

• Contractors are likely to face more rigorous and regular checks of their insurance and credentials for the services undertaken and need to take stock of their preparedness.
• Social enterprises and charities may also face similar scrutiny.
• Councils, schools, hospitals etc. will have to understand that they can not escape their duty of care by hiring a competent ‘technician’ etc. if that duty of care is non delegable.

Characteristics of the Non Delegable Duty of Care

The point is that it is not who performs the work or the taking of indemnities but with whom that duty of care resides at all times i.e. whether it is non delegable and remains personal to the organisation, for example, a council.   The Court has given guidance on what characteristics give rise to a non delegable duty of care.

i)  it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant.

ii)  the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that is foreseeable as causing injury.

iii)  the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is, but the duty itself remains that of the defendant.

Defining Features of the Duty of Care

The principles were developed further when considering the case of a School and Council’s duty of care in supervising school children during swimming lessons.  A contractor had been engaged who also hired other independent contractors. The judges were concerned that the development of the principles should not create anomalies as to who could and could not claim protection under the principle and set out the following defining features:

• The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury; such claimants could include prisoners, residents in a care home..
• There is a pre existing relationship between the claimant and the defendant which places the claimant in the actual custody, charge or care of the defendant, and from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm.
• The claimant has no control over how the defendant chooses to perform those obligations i.e. whether via employees or via a contractor etc.
• The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; that third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the
  claimant and the element of control that goes with it.
• The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

Preparedness for Tougher Scrutiny

Organisations should take stock of the contracts/services in which they can expect more scrutiny from the engaging organisation.  If they wish to retain or to win such contracts, they should review:

• their understanding of the vulnerable situations and clients involved in the contract.
• the effectiveness of their health and safety risk assessments including periodic critiques of those in high risk activities.
• the effectiveness of their vetting of their own employees or sub contractors including their approach to risk assessments, training of staff, reporting of incidents and corrective action.
• their overall approach to risk management of their business .

In employment situations. vicarious liability of the employer for wrongdoing of employees is a well known principle as is the general principles of tort to acts or omissions of neighbours and so on.  While previously the careful selection and instruction of a competent contractor may have been sufficient, now that is no longer enough in circumstances in which a non delegable duty of care arises.

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