Personal liability, vicarious liability, non-delegable duties and protecting vulnerable people

It is not especially controversial to assert, at least as a broadly desirable objective, that the principles of the common law of torts should have a role to play in protecting vulnerable people. 1 But immediate difficulty is likely when we start to consider what this proposition may mean in practice and how exactly the objective may come to be achieved.The common law courts seek to lay down rules and principles of general application.They do not have the same ability or the same freedom as legislatures have to craft detailed rules that can be expressed to apply specifically to defined (and, maybe, deserving) claimants. 2But the courts nonetheless are able to bring into account the notion of vulnerable persons as a class or category of claimant or of defendant, and in this way may accord them special treatment when resolving disputed issues of liability.The concern of this paper is with the former of these categories, that is, plaintiffs who are in some sense vulnerable who are making a claim for damages. 3 We can find support for the idea that a plaintiff's vulnerability is or may be a relevant concern in decisions on the imposition on defendants of a duty of care in negligence, in decisions governing the imposition on defendants of vicarious liability in respect of the deliberate or negligent actions of another person, and in decisions recognising that defendants may be under a duty which cannot be delegated to other persons. 4 The aim of this paper is to examine these three ways in which the common law courts have given expression to, and support for, the concept of plaintiff vulnerability, and, further, to consider any links and overlaps between them. 5 The primary focus is on the decisions of the courts in the United Kingdom, Australia, Canada and New Zealand, although cases from other jurisdictions are mentioned as well.These introductory words have not addressed the question as to when, exactly, a litigant may be regarded as vulnerable.It would hardly be possible to compile an exhaustive list of qualifying circumstances or conditions, and the underlying concept is clear.Speaking broadly, our concern is with a plaintiff's relationship or connection with a defendant where, by reason of the plaintiff's weakness and/or the defendant's strength or power, the plaintiff typically is at a disadvantage in relation to the

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