5 Things About Non-Delegable Duties

1. An exception to the general rule that an employer is not liable for the default or negligence of an independent contractor

In Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor [1993] 2 MLJ 234, the Supreme Court enunciated the following:

“While the rule that an employer of an independent contractor is not liable for the default or negligence of such contractor no doubt exists, there are exceptions, and it is outside the province of this judgment to elaborate all the exceptions but only briefly to deal with them except those which are directly concerned with the instant case.

The first exception is where an employer has not exercised care in selecting a competent contractor as was much pressed in argument in the present case. The second exception is a group of cases or situations when the duty to take care is said to be ‘non-delegable’. A non-delegable duty to take care means in effect that the employer would have to see to it that such duty of care is exercised, whether by his contractor or not, otherwise he would be equally liable as the contractor, in addition, in most cases, to the liability of his contractor.”[1] (Emphasis mine)

Denning LJ’s pronouncement in Cassidy v Ministry of Health [1951] 2 KB 343 is one of the earliest pronouncements on the concept of non-delegable duties:

“I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.”

Denning LJ’s views were quoted approvingly by the Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 28 (“Dr Hari Krishnan”).[2]

2. Arises in two broad categories of cases

Lord Sumption in Woodland v Essex County Council [2013] UKSC 66 elaborated on ‘non-delegable duties’:

“6. English law has long recognised that non-delegable duties exist, but it does not have a single theory to explain when or why. There are, however, two broad categories of case in which such a duty has been held to arise. The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The early cases are concerned with the creation of hazards in a public place, generally in circumstances which apart from statutory authority would constitute a public nuisance: see Pickard v Smith (1861) 10 CB (NS) 470 (which appears to be the first reported case of a non-delegable duty), Penny v Wimbledon Urban District Council [1898] 2 QB 212 and Holliday v National Telephone Company [1899] 2 QB 392. In Honeywill and Stein Ltd v Larkin Brothers (London’s Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly to “extra-hazardous” operations generally. Many of these decisions are founded on arbitrary distinctions between ordinary and extraordinary hazards which may be ripe for re-examination. Their justification, if there is one, should probably be found in a special public policy for operations involving exceptional danger to the public. But their difficulties do not need to be considered further on these appeals, because teaching children to swim, while it unquestionably involves risks and calls for precautions, is not is not on any view an “extra-hazardous” activity. It can be perfectly satisfactorily analysed by reference to ordinary standards of care.

7. The second category of non-delegable duty is, however, directly in point. It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, 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 foreseeably causes injury. Third, 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 the defendant’s. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock). The analogy with public services is often close, especially in the domain of hospital treatment in the National Health Service or education at a local education authority school, where only the absence of consideration distinguishes them from the private hospital or the fee-paying school performing the same functions under contract. In the law of tort, the same consequence follows where a statute imposes on the defendant personally a positive duty to perform some function or to carry out some operation, but he performs that duty by entrusting the work to some one else for whose proper performance he is legally responsible. In Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716, 725-728, Lord Denning MR analysed the liability of a non-contractual bailee for reward in similar terms, as depending on his duty to procure that proper care was exercised in the custody of the goods bailed.” (Emphasis mine)

The above extract was partly summarised, and partly quoted by the Federal Court in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (“Dr Kok Choong Seng”).[3]

3. Should be imposed only where it is fair, just and reasonable to do so

Raus Sharif CJ, in Dr Kok Choong Seng, adopted the proviso in Woodland v Essex County Council [2013] UKSC 66 and opined the following:

“… we see no reason why the doctrine of non- delegable duty should not continue to be applied in Malaysia, and we consider the guiding principles refined in Woodland as a useful starting point. Nevertheless, we hasten to stress that non-delegable duties impose more onerous obligations; it is worth reiterating the proviso in Woodland that such duties should be imposed only where it is fair, just and reasonable to do so based on the particular circumstances of the case, and developed incrementally from existing categories and consistently with underlying principles.”[4] (Emphasis mine)

4. Expressly recognised to be applicable in, amongst others, medical negligence cases

The Federal Court in Dr Hari Krishnan held:

“Where a hospital is held to owe a non-delegable duty to its patient to ensure that reasonable care is taken in his treatment, the hospital may be held liable to the patient if the duty is breached, regardless to whom performance of that duty is delegated.”[5]

5. Not fatal if it is not expressly pleaded, so long as the essence of the duty is pleaded

 In Kee Boon Suan & Ors v Adventist Hospital & Clinical Services (M) & Ors and other appeals [2018] 5 MLJ 321 (“Kee Boon Suan”), the Court of Appeal was of the view that the non-delegable duty of care must be expressly pleaded:

“[56] More importantly, we note that the issue of non-delegable duty of care was not even pleaded by the patient and her parents in the first place. Therefore, the issue ought not to have been considered by the learned JC when it was raised at the late stage of the submissions. We do not agree with the submissions of learned counsel for the patient and her parents who, in relying on the Federal Court decision in Tun Hussein Onn National Eye Hospital v Megat Noor Ishak bin Megat Ibrahim & 2 Others Civil Appeal No 01(f)-26-04 of 2015(W) (unreported) (FC), submits that even if ‘the plaintiff had not pleaded direct liability on the hospital’s part for negligence … the essence of a non-delegable duty have been pleaded’.

[57]  With respect, we are of the opinion that a claim made under the doctrine of non-delegable duty of care must be expressly pleaded against the hospital. Otherwise from a plain reading of the counterclaim of the patient and her parents, it is clear that their claim against the hospital is based on vicarious liability, but not on the cause of action of non-delegable duty of care.”[6] (Emphasis mine)

Kee Boon Suan’s decision on this point, however, is questionable in light of the Federal Court’s decision in Dr Hari Krishnan. The latter was decided 5 months before the former.

Raus Sharif CJ, in Dr Hari Krishnan, held:

“Since ‘the nature of a non-delegable duty is, in essence, a positive duty to ensure that reasonable care is taken’ (Dr Kok Choong Seng), we find that the essence of a non-delegable duty have been sufficiently pleaded.[7]

In Hemraj & Co Sdn Bhd & Anor v Tenaga Nasional Bhd & Ors [2022] MLJU 1307 (“Hemraj & Co”), the Court of Appeal was of a similar view:

“Even though the words ‘non-delegable duty of care’ was not expressly pleaded in paragraph 18 of the SOC, we find that the essence of the duty was sufficiently pleaded.”[8]

The Court of Appeal in Hemraj & Co also correctly pointed out that the Court of Appeal in Tenaga Nasional Bhd v Syarikat Bekalan Air Selangor Sdn Bhd & Anor [2018] 1 MLJ 810 made a finding on non-delegable duty of care against Syarikat Bekalan Air Selangor Sdn Bhd in the absence of the express pleading of the phrase ‘non-delegable duty of care’.[9]