I, Mek H. Kamongmenan, Senior Tutor of Law at the School of Law, University of Papua New Guinea and a Lawyer- Parkil Lawyers.
Duty of Reasonable Care
The nature of the relationship of proximity gives rise to a duty of care, a special and more stringent kind, namely a duty to ensure that reasonable care is taken. These relationships are present where there is an element of control by the defendant, or the vulnerability of the plaintiff. If such responsibility is imposed on the defendant as it was in this case, he cannot remove the duty by delegating its performance to a third party. He has the freedom to choose any third party to perform his duty, if the plaintiff is injured, he (defendant) will still be held liable for non-performance.
When a court deliberates of non-delegable duty under the independent contractor based on law of tort rule, it means that a party bargain away the risks of performance. Such relationships in negligence include parents and children, teachers and students, occupier and invite, employee and employer. For instance, the case of Edwards v Jordan Lighting and Dowsett Engineering (New Guinea) Pty Ltd, in which involved the principle of non-delegable duty of a relationship between employer and the employee.
The employer failed to perform his non-delegable duty of care and as a result the employee got injured. The court held that the failure of the employer to eliminate risk showed a want of reasonable care for the employee’s safety. Hence, the employer was held liable to pay for the injuries caused to the employee.
The central element of control exist in such relationships where the parties in the relationship generate special responsibility or duty to see that the person on whom (the duty) is impose has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.
As in the case of Papua New Guinea Wilhelm Lubbering v Bougainville Copper Limited, the defendant as the employer was in control of the relationship, where the employee depended on the defendant. But the defendant failed to supervise and to provide safe system of work for its employee which caused the plaintiff to get injured. It was the employer’s duty to provide safe system of work to c0-ordinate his employee’s activities in any given operation, the methods in which those operations are to be executed and the use of particular equipment and machine.
The responsibility could not be escaped by the employer by saying that his employees are well qualified and experienced in their jobs because the law provides that it will still be held liable for non-performance of the its duty. Accordingly, the defendant was liable to compensate for the damages suffered by the plaintiff. Thus, it is important to refer to the central element of control because it gives rise to non-delegable duty of care in cases in marked by the special dependence or vulnerability on the part of that person.
Moreover, the non-delegable duty involves a form of vicarious liability, pursuant to which party with the duty may be vicariously liable for the conduct of its independence contractor. That vicarious liability, however, does not necessarily preclude liability of proximity attracts the rule of Rylands v Fletcher when a person is on control of the premise and who has taken advantage of that control to introduce thereon a dangerous substance. Therefore, the important question to ask is whether the defendant took advantage of its occupation and control of the premises to allow its independent contractor to introduce or retain a dangerous substance or to engage in a dangerous activity on the premises. Dangerous activity refers to one in which the probability and magnitude of the risk were high to make a reasonable special care . This means that the person in control must take reasonable precautions because the other person is dependent on him/her and is vulnerable to danger if reasonable precautions are not taken.
In the given case, what the independent contractor was engaged to carry out on the premises was a dangerous activity in that it involved a real and foreseeable risk of a serious conflagration unless special precautions were to avoid taken risk of serious fire. It was obvious that, in the event of any serious fire on the premises, the General’s frozen vegetables would almost certainly be damaged or destroyed.
In the circumstances, the Authority, as occupier of those parts of the premises into which it required and allowed the Isolite to be introduced and the welding work to be carried out, owed to General a duty of care which was non-delegable in the sense I have explained, that is to say, which extended to ensuring that its independent contractor to reasonable care to prevent the Isolite being set alight as a result of welding activities. It is now common ground that the contractors did not take such reasonable care.
Consequently, the Authority [defendant] was liable to General [plaintiff] pursuant to the ordinary principles of negligence for the damage which general sustained. Thus, the appeal was dismissed
In the case of Burnie Port Authority, its only significance is that it brought an end to the Rylands v Fletcher rule in Australia. However, in PNG’s legal jurisdiction, the Rylands v Fletcher principle is still a binding and effective case authority. Furthermore, Burnie Port Authority case is only a persuasive case authority in PNG and is also not binding since this case was decided after 16th September 1975, which the cut off open of application of the all the common case precedents in Papua New Guinea. However, pursuant to Sch.2.3 of the Constitution of Papua New Guinea, the court may consider such rule in development, etc, of the Underlying law of PNG jurisprudence.
  PGLawRp 542;  PNGLR 273
 Kondis v State Transport Authority  154 CLR at 687
 PNGLR 183
 The Commonwealth v Introvigne  HAC 40 (1982) 258 at 271
 Burnie Port Authority v General Jones