Can a duty of care be passed on to others, and what does that mean for personal injury claims?

Sometimes, an injured person may believe they cannot claim if a third party has had a role in causing their injury – particularly if they do not know the identity of the third party. But there are many situations, particularly involving accidents at work, where a claim can proceed in a straightforward way.

In one of our recent cases, our client was employed by a major retailer. Part of the store where he worked was undergoing a refit. Several different contractors were involved in the refit. Damage had been caused to a doorway within the workplace, and the client was injured as a result of that damage. Our client did not know how the damage had occurred or who had caused it. He strongly suspected it had been caused by one of the contractors but his concern was that he did not know the identity of the contractors. Could he claim?

It all centres around the question of the “duty of care”. As specialist personal injury lawyers, Allan McDougall Solicitors deals every day with questions relating to duties of care. Proving negligence is essential in a compensation claim, otherwise there is no entitlement to damages. “Negligence” means a failure in a duty of care.

Who owes the duty of care? In most instances, the answer is clear but not always. Does the involvement of a third party change who owes a duty of care? Can a duty of care be “delegated” to another party? As with many areas of the law, the answer is: it depends.

Consider a situation involving, initially, two parties, A and B.

There is a legal relationship between A and B.
A is obliged to perform a certain function as part of that legal relationship.
In doing so, A owes a duty of care to B.
But then A instructs a third party (C) to perform the function on A’s behalf. A must take reasonable steps to satisfy herself that C is competent to perform the task.

The standard duty of care principle

The standard principle is that A is entitled to delegate to C both (i) performance of the function and (ii) responsibility for its proper performance. If C then performs negligently, C will be liable to B. A will have not have any responsibility for C’s failures. A can delegate its duty to C.

An example of this arose in Hopkins v Akramy in 2020. An NHS Primary Care Trust had contracted a third party to provide its out-of-hours service. The court held the Trust could not be liable for negligence by the service provider it had contracted. The legislation which applied required the trust either to perform the service or “secure provision within its area”. By securing the service provider to perform the out-of-hours care, the Trust had also delegated the duty of care on to that provider.

The exception – “non-delegable” duty of care

But there are circumstances in which a duty of care cannot be delegated. It is “non-delegable”. Among the various criteria is one in which, in the above example, B is vulnerable or somewhat dependent on the protection of A. Examples include:

If B is a child and A is a school or similar institution.
If B is a patient and A is a primary healthcare facility.
If B is a resident in a care home and A runs the home.
If B is a prisoner and A is the prison service.
If B is an employee of A.

Some examples of court cases illustrate how this has been applied in practice.
In McDermid v Nash Dredging 1987, a deck hand, employed by a UK company, was working on a tug owned by a Dutch company. The Dutch captain of the tug failed to follow a system he himself had put in place for the safety of the deck hand. The captain moved the vessel too early and this caused the deck hand serious injury.

Could the UK employer be liable when it was the Dutch captain who was negligent? The court said yes. The duty to devise a safe system of work was a core duty of an employer. The employer could not escape liability if devising a safe system was delegated and not properly performed.

In Woodland v Essex County Council 2013, primary school children were taken to a local swimming pool for swimming lessons. Lessons were given by swimming teachers who were employed by a contractor, not the local authority. A child was injured due to negligence of the swimming teacher. The question was whether the local authority, as the education authority, could delegate its duty of care on to the contractors who employed the swimming teacher. The Supreme Court held the local authority’s duty in this situation was non-delegable. The swimming lessons were a central part of the school’s teaching function – they were part of the curriculum. The lessons were undertaken during school hours at a location chosen by the school. The negligence arose in the course of that central function which the local authority was obliged to perform.

In Hughes v Rattan 2022, a patient of a dental practice alleged negligent treatment by dentists who were, in strict legal terms, contractors, not employees of the practice. Could the dental practice avoid liability based on an argument it had delegated its duty of care to its contractors? The court held the practice could not avoid liability. The patient was dependent on the practice. The practice had accepted her as a patient which meant it owed her a duty of care. The court observed the patient had not chosen any of the dentists – she was allocated one when she made an appointment.

How did this apply in the case of ours for the employee of the retailer mentioned at the beginning of this article? Part of the employer’s core duty of care is to take reasonable care to provide a safe place of work. We argued the employer retained that duty and that it could not be delegated to the contractors brought in to do the refit. We argued the employer remained liable for the fact the workplace had been made unsafe. We secured a successful outcome for the client.

Email Stephen Irvine
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