Non-delegable duties and institutional liability for the negligence of hospital staff (original) (raw)

The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do … The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.' 14 Such duties are not, however, confined to negligence: liability may, depending on the nature of the non-delegable duty in question, be strict or fault-based. However, if the latter, the net result is that the defendant is liable for negligence, committed by herself or another, even if that other is an independent contractor. It is distinct, however, as Lord Sumption indicates above, from the doctrine of vicarious liability which, orthodox theory dictates, imposes secondary, not primary, liability. As might be imagined, this is contentious. It is difficult to discern a clear distinction between the non-delegable duty and vicarious liability on a functional analysis in that both concepts render the employer liable in tort for the tortious actions of another. In rendering an employer (X) liable for the torts of the person to whom he delegated his duty of care, are we not imposing strict liability for the torts of another, in other words, vicarious liability? 15 Further, non-delegable duties have arisen in such a variety of contexts that it seems impossible to identify a single conceptual basis capable of uniting all forms of such duty.