The Blame Game

When parties outsource duties to independent contractors who then carry out the work negligently, is the hiring party also responsible? SMU Associate Professor Low Kee Yang believes so.

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Photo Credit: Cyril Ng

By Nurfilzah Rohaidi

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SMU Office of Research – Picture this: you receive a panicked call while at work because your daughter had injured herself at the pool. You find out later that the swimming lesson she had attended, which is deemed mandatory by the school, wasn’t carried out by the school’s employees. Instead, the school had hired an independent contractor to conduct these lessons. When faced with these facts, you would undoubtedly ask: who is responsible for ensuring your daughter’s safety? The school, the independent contractor, or both?

Low Kee Yang, Associate Professor at the Singapore Management University (SMU) School of Law, attempted to answer this question in a paper that he presented at the Protecting Business and Economy Interests: Contemporary Issues in Tort Law conference held at the Supreme Court of Singapore on 18-19 August 2016.

The paper, titled “Non-delegable Duty of Care: Woodland v Swimming Teachers Association and Beyond”, had previously received a commendation during the Singapore Law Gazette Awards 2015.

Hiring a third party contractor

In this paper, Professor Low focused on a tort law case in the UK where the Supreme Court addressed the thorny issue of non-delegable duty, which refers to an obligation that cannot be outsourced to a third party.

“In the past, even though you had hired independent contractors, the general principle then was that you would not be liable if you had acted with care when selecting these contractors,” he explains.

The situation changes if extra-hazardous activity is involved, but Professor Low noted that Lord Sumption, the Supreme Court judge who passed the ruling in the decision of Woodland v Swimming Teachers Association and others case, did not consider swimming as extra-hazardous.

Nevertheless, Lord Sumption identified this case as a special one, where the defendant was in breach of his personal duty towards ensuring the safety of the claimant, since the independent contractor representing him was acting without due care.

Five defining features of non-delegable duty

Drawing from this case and others in Australia, Lord Sumption came up with a landmark framework consisting of five defining features to determine whether the duty of care in a certain situation would be non-delegable.

“If you can satisfy these five elements, then there is non-delegable duty,” Professor Low explains. “Previously, there was no such unifying framework of principles or criteria.”

Of the five, three are particularly important. Firstly, there must be an existing relationship between the claimant and defendant, placing her in the defendant’s custody or care. In the Woodland case, this was obvious—the student studied at the school. Secondly, the claimant must have no control over whether the defendant delegates his duties to third parties - of which in that case, students have no say in who teaches their lessons. Thirdly, the defendant must have delegated a function that is integral to his positive duty. For the claimant, swimming was part of the school curriculum.

Considering the facts of the Woodland case, Lord Sumption had decided that all those elements were satisfied and that this was a case of non-delegable duty, relates Professor Low.

“Therefore, the school was found to be liable for the victim’s injuries as the swimming instruction was carelessly carried out by the independent contractor. Effectively, the instructor was representing the school and could be seen as an employee or agent,” he says, pointing out that this is a particularly controversial area of tort law.

Making duty of care non-delegable by default

Using the Woodland case as a starting point, Professor Low proposed an interesting new principle in his paper: that duty of care is non-delegable, and that the principal can be held liable for his representative’s negligence.

“What I’m trying to say is that if there are so many situations in which duty is non-delegable, why don’t we flip it around and say that duty is non-delegable as a default?” he asks. “If you ask someone to do for you, you are responsible. If he doesn’t do it well, you are liable.”

Professor Low’s reasoning behind this is a practical one. The Sumption framework is not one-size-fits-all, he says, citing a recent tort case in Singapore, MCST Plan No 3322 v Tiong Aik Construction Pte Ltd. Here, the management company of a condominium represented the property owners to sue the developer, main contractor, architect and various parties for some defects.

“The pool landscaping was not well done, and leaves would often fall into the pool and clog up the system. There was also a foul smell coming out of the sewage system,” describes Professor Low.

However, the Singapore Court of Appeal had endorsed the Woodland decision and, referencing the Sumption framework, said that the five requirements were not satisfied. For that reason, the judge ruled that there was no non-delegable duty on the part of the main contractor and the architect.

Regarding the fairness of the Tiong Aik decision, Professor Low confesses that he had his doubts. “I think that in general property buyers do not  contemplate at all who the sub-contractors of their units are,” he says. “They bought the house from the developer; when something goes wrong, they would expect the developer to take care of it.”

Professor Low saw the need to draw up an alternative: one where the principal has non-delegable duty and will be held liable, subject to appropriate exceptions. Noting in his paper that the adoption of such a principle would be a “radical move”, he also pointed out the lack of any comprehensive and coherent legal framework still troubles judges and jurists alike. “This area of law is tricky, and needs to be cleared up.”

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