Kondis v State Transport Authority
High Court of Australia · 1984
Kondis v State Transport Authority (1984) 154 CLR 672
The crane was a contractor's, and so was the decision to extend its jib. The worker was his employer's. Whose duty was it?
Kondis survives, and Bird confirms why the two routes must be analysed separately. On vicarious liability the Court holds that "an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship 'akin to employment'" ([5]) -- declining to extend vicarious liability to akin-to-employment relationships and confirming the employment requirement as established Australian law. On the non-delegable duty the joint reasons of Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ restate it in Kondis's terms: not "merely a duty to take care" but "a duty to ensure that reasonable care is taken", arising "where the nature of the relationship ... is one where the defendant has assumed particular responsibility to ensure that care is taken"; the employer's duty to provide a safe system of work is "[a] core instance" ([36]-[37]).
LEGISLATION SINCE, in Victoria only, and on the vicarious liability half rather than the non-delegable duty: the Justice Legislation Amendment (Vicarious Liability for Child Abuse) Act 2026 (Vic) inserted s 93C into the Wrongs Act 1958 (Vic), which provides that "[a]n institution is vicariously liable for the abuse of a child by an employee of the institution or an individual akin to an employee of the institution" where the role the institution placed them in "supplies the occasion for the abuse" and they "take[] advantage of, or use[], that occasion". Section 93C(2) lists the indicia of being akin to an employee -- whether the individual carries out activities "as an integral part of the activities carried on by the institution" and for its benefit, and the extent of the institution's control -- and s 93C(3) excludes independent contractors. So Bird's holding that Australian vicarious liability requires employment is the common law and remains so, but in Victoria a statutory route now reaches akin-to-employment relationships for institutional child abuse. The authorised report citation is (2024) 98 ALJR 1349, which AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 cites at 1359-1360 [36]-[37] for the non-delegable duty passage quoted above.
KONDIS SURVIVES, AND A 2026 DECISION SETTLED WHAT IT ALWAYS MEANT. In AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, decided 11 February 2026, the High Court re-opened and overturned New South Wales v Lepore's holding that a non-delegable duty cannot reach harm caused by an intentional criminal act. It matters because Kondis is the case the 2026 Court read to find no such limit had ever been imposed: at [32] there was "no hint in the reasoning in Introvigne, Kondis, or Burnie Port Authority, or the cases analysed therein, that a non-delegable duty to ensure that reasonable care is taken could not extend to an intentional criminal act". MASON J'S TEST IS RESTATED AS THE LAW. At [16] the Court records that his Honour, "with whom Deane and Dawson JJ agreed", explained that non-delegable duties are recognised where the duty-holder had "undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or [their] property as to assume a particular responsibility for [their] or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised", adding that "[m]ere foreseeability of the risk of harm is a necessary but not a sufficient condition". At [6] the leading reasons record the agreement of Gordon, Edelman and Steward JJ in that same requirement, so it is common ground across six of the seven judges.
TWO THINGS TO DO DIFFERENTLY NOW. First, do not reason from "the standard is reasonable care" to "so a deliberate wrong falls outside the duty": at [30] "an intentional criminal act of a delegate which injures the person to whom the duty-holder owes the non-delegable duty is necessarily a failure by the delegate to take reasonable care and therefore a failure by the duty-holder to ensure that reasonable care is taken". Second, keep the distinction Kondis draws, because AA keeps it too and it is the half that has not changed: at [30] "it is not right to conceive of the non-delegable duty as imposing absolute liability", and the duty-holder "cannot be liable for breach of a non-delegable duty unless either the duty-holder personally or the delegate has defaulted in the taking of reasonable care". A duty to ensure that reasonable care is taken, not a guarantee of safety, remains exactly right.
ONE REFINEMENT OF METHOD, at [21]: "No two-stage process of analysis is required." Statements that one must first find a duty of care and then ask whether it was delegable "are not to be applied literally" -- a non-delegable duty is itself "a 'special' kind of common law duty of care in negligence" obliging the duty-holder "to ensure that reasonable care is taken to avoid a foreseeable risk of injury to that other person by any delegate of the duty-holder". The appeal was allowed 5:2, Steward and Gleeson JJ dissenting.
What happened?
Kondis worked for the State Transport Authority. A mobile crane hired from a third party was operated by Clissold, who was not the Authority's employee. Extending the crane's jib required a pin to be inserted; Kondis was assisting, and was struck by a metal rod that fell while he was underneath the jib.
The trial judge found that Kondis had been acting under Clissold's control, and the Full Court held that Clissold was not the Authority's servant pro hac vice, so vicarious liability was unavailable. The Authority said that settled it.
What did the Court decide?
The appeal was allowed. The Authority's duty to provide a safe system of work was non-delegable, so it was "liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work" ([36]). Mason J is explicit about the basis: "[t]he respondent is liable for his neglect, not on a vicarious basis, but because Clissold's omission to adopt a safe system is a breach of the respondent's duty."
Two things about that are easy to lose. First, the Authority was liable because reasonable care had not been taken in devising the system, not because the appellant was hurt ([32]; see also [18]). Second, the case did not rest on the contractor's fault alone. Mason J added that even without the non-delegable duty, the Authority would have been in breach "on the ground that the appellant's foreman failed to direct him not to be under the jib of the crane during the extension procedure": Clissold's control "was not such as to exclude the giving of directions to the appellant by his foreman" ([37]). Dawson J reached his conclusion on that footing.
What generates the heavier duty is an assumption of particular responsibility, not the label on the relationship. Mason J's examples at [33] are of a hospital that "undertakes the care, supervision and control of patients", a school authority that takes children into its care, an invitor who "assumes a particular responsibility in relation to the safety of his premises", and a landlord who had undertaken to renew a roof — and his Honour was explicit that whether an occupier owes a non-delegable duty was not an issue he needed to decide ([35]). Foreseeability alone will not do either.
Why the employment relationship carries the heavier duty is set out at [35]. "The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters." The employee's safety "is in the hands of the employer; it is his responsibility", so "there is no unfairness in imposing on him a non-delegable duty". As Mason J put it, "[b]efore the special duty arises there must exist in the relationship between the parties an element of the kind already discussed" ([34]).
Proposition
What is the principle?
An employer's duty to provide a safe system of work is non-delegable. It is not a guarantee of safety: it is "a duty to ensure that reasonable care is taken", which is more stringent than a duty to take reasonable care oneself but is still measured by reasonable care. It arises from the relationship — the employer has exclusive responsibility for the appliances, the premises and the system of work, and the employee has no choice but to rely on the employer's judgment — so entrusting the task to an independent contractor does not discharge it.
Why does this case matter?
Because it is where students most often stop one step short. A problem that carefully establishes the contractor's independence has usually done so to close off vicarious liability, and an answer that notes the independence and concludes "so the employer is not liable" has walked into the trap the facts were built around. Personal liability and vicarious liability are different routes with different requirements, and the second failing tells you nothing about the first.
Bird v DP makes that separation matter more, not less. At common law, vicarious liability in Australia needs a relationship of employment, and the Court declined to extend it to relationships "akin to employment". The qualification is doing work: Victoria has since legislated a statutory route that reaches akin-to-employment relationships for institutional child abuse, so check whether a statute occupies the field before you apply the common law rule.
Exam and application relevance
Identify what a safe system would have required — here, a procedure or an instruction forbidding anyone from standing under the jib during the extension — and show it was not provided. "The worker was injured" is not a breach.
Then look for the defendant's own failure as well. In Kondis the foreman could have given the direction and did not, and Mason J would have found a breach on that ground alone. A pleading that rests entirely on the contractor's negligence gives away an independent case.
Check your understanding
Why does the contractor's independence defeat one route to liability and leave the other untouched — and what would the employer have had to show to escape the second?