B Non-delegable Duty of Care The non-delegable duty is a personal duty to ensure that reasonable care is taken.46 It has been described as a ‘sub-species of negligence law’.47 Recognised categories have involved ‘a person being so placed in relation to another as “to assume a particular responsibility for [that other person’s] safety” because of the latter’s “special dependence or vulnerability”’.48 In certain circumstances (such as schools vis-a-vis students,49 employers vis-a-vis employees,50 and hospitals vis-a-vis patients)51 the law recognises a duty to ensure that reasonable care is taken and liability for functions integral to this positive duty cannot be delegated, even if the tasks are delegated to an independent contractor.52 Any negligence on the part of an independent contractor in fulfilling such a duty will be sheeted home to the principal.53 No other common law jurisdiction has applied a non-delegable duty to impose liability for institutional child sexual abuse. However, it has been considered by the High Court in Australia, and has influenced the Royal Commission’s recommendations,54 so it warrants consideration.
