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Nationwide News PL v Naidu & Anor [2007] NSWCA 377. 

Beazley JA:

312 In finding that ISS Security was liable for the conduct of Mr Chaloner and that his knowledge was attributable to it, his Honour relied upon the decision of this Court in TNT Australia PL v Christie & 2 Ors [2003] NSWCA 47; (2003) 65 NSWLR 1.

313 The plaintiff in TNT v Christie was employed by an employment agency, or 'body hire company'. He was sent by his employer to work at the brewery premises of TNT where he worked under the daily management of the TNT warehouse manager. The plaintiff's wages were paid by the employer and a representative of the employer visited the brewery once a week. The plaintiff's duties at TNT's premises were to pick up cartons of beer and have them ready for delivery to liquor outlets. The plaintiff was injured in the course of carrying out these tasks when a pallet jack, which was equipment supplied by TNT to enable the plaintiff to carry out his duties, malfunctioned and ran over his foot.

314 Mason P held that both the employer and TNT owed to the plaintiff a non-delegable duty of care. His Honour analysed the scope of that duty at 10 [45]. It is not necessary to repeat all of that analysis. What is relevant for present circumstances, and as TNT v Christie confirms, is that a non-delegable duty is not discharged merely by the employment of a qualified independent contractor. As Mason P had earlier observed in his judgment in this Court in Lepore v State of New South Wales [2001] NSWCA 112; (2001) 52 NSWLR 420 at 426 [29]:

The expression 'non-delegable duty' is somewhat misleading. It implies that a person cannot delegate a duty, but the truth is that the person cannot avoid liability by relying on the delegation, even to a competent delegate.

315 His Honour continued at 429 [43]

Discussion about non-delegable duties of care is usually accompanied by the statement that the duty will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor (e.g. Burnie Port Authority at 550). However, the concept extends to negligence by employees because it may be invoked whether fault is, or might be, that of an employee whether or not acting in the course of employment.

316 In Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 the employer was held liable for the negligence of its independent contractor in failing to adopt a safe system of work. It was held that the contractor's failure to adopt a safe system of work constituted a failure by the employer to satisfy its non-delegable duty to exercise reasonable care in providing a safe system of work for its employee.

317 ISS Security owed a non-delegable duty of care to Mr Naidu to take reasonable care for his safety, including taking reasonable care to provide him with a safe system of work and a safe place of work. If Mr Chaloner had been employed by ISS Security, then ISS Security would have been liable for his conduct to Mr Naidu, provided that the conduct could properly be characterised as an unauthorised mode of carrying out his duties. I have already concluded that that was the appropriate characterisation of his conduct.

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