LIABILITY FOR INDEPENDENT CONTRACTORS IN CONTRACT AND TORT: DUTIES TO ENSURE THAT CARE IS TAKEN

Liability for independent contractors generally poses few difficulties in the law of contract, whereas in tort it is a vexed question. The difficulties are only compounded by the governing concept: the so-called "non-delegable duty". This article explains the differences and argues that no easy parallels can be drawn from the contractual position to answer the riddles in tort. Neither does "assumption of responsibility" help. There is undoubtedly a case for recognising vicarious liability for independent contractors when businesses and public bodies alike now outsource so many of their functions. This issue needs to be confronted squarely, not through unconvincing contractual analogies.