Hossain v Unity Grammar College Ltd and Ors [2019] NSWSC 1313 (available on Caselaw) has a number of interesting aspects, including a consideration of non-delegable duties in the context of installation of a gas regulator at a school. There was an explosion, injuring a caretaker.
Justice Campbell discussed the application of the NDD issue in accordance with the principles in Burnie Port Authority at [101] – [104]:
[101] Were I wrong in those conclusions, in my view the duty of Binah in these circumstances is non-delegable. I appreciate the force of IAL’s submission that there is a high threshold to establish a non-delegable duty. And I appreciate that the decision of the High Court in Leichardt Municipal Council v Montgomery evinces what might be regarded as a strong reluctance to extend the established categories of non-delegable duties. If the door has not been slammed closed, it is barely ajar and guarded by a vigilant, juristic sentinel. A category of non-delegable duty not disapproved of in Leichardt Municipal Council v Montgomery was that established by the unanimous decision of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. Their Honours said at 550:
It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and “more stringent” kind, namely a “duty to ensure that reasonable care is taken”. Put differently, the requirement of reasonable care in those categories of case extends “to seeing that care is taken”.
[102] Burnie Port Authority was a case concerned with a liability of an occupier for the harm caused by the escape from its land of a dangerous substance, in that case, fire. The ratio of the decision may be taken to be the following passage at pp 556 – 557. Having explained why the former rule in Rylands v Fletcher (1868), LR 3HL 330 should be “absorbed by the principles of ordinary negligence”, their Honours continued at p 556:
Under those principles, a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. In a case where the person or property of the other person is lawfully in a place outside the premises, that duty of care both varies in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken.
It is unnecessary for the purposes of the present case to express a concluded view on the question whether the duty of care owed, in such circumstances, to a lawful visitor on the premises is likewise a non-delegable one. The ordinary processes of legal reasoning by analogy, induction and deduction would prima facie indicate that it is. (My emphasis)
The part I have emphasised is clearly considered dicta in the Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 sense and should be applied, in my judgment in the circumstances of the case.
[103] There is no doubt that Binah has taken advantage of its control of the premises to introduce a dangerous substance namely LPGas and to carry on a dangerous activity in terms of facilitating the use of the gas installation by the College. As their Honour’s said at p 554:
Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’’. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of “reasonable care’’ may involve “a degree of diligence so stringent as to amount practically to a guarantee of safety’’. (Footnotes omitted).
[104] Given the risk involved in the introduction of a fixed LPG installation, there is no injustice in imposing upon the principle contractor, the more stringent duty of seeing that reasonable care is taken. In that regard the consequences of Enma’s obvious negligence are sheeted home as legal liability in Binah which IAL must assume under the terms of the federal statute.