I introduction

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.