Public authority: Schools – non delegable duty of care
Woodland v Essex County Council
23 October 2013
The Appellant was a 10-year-old pupil at a junior school (the school) for which Essex County Council was the Local Education Authority (LEA). The National Curriculum at that time included a requirement for LEAs to provide physical activity of various kinds, including swimming. The school had arranged for swimming lessons to be provided during school hours at a pool operated by Basildon Council and supervised by an independent contractor. During one of these swimming lessons, the Appellant alleges that she struggled unnoticed and started to drown. She was resuscitated but it is alleged that she suffered hypoxic brain injury.
The Appellant sought a finding that the LEA was liable for any negligence committed on the part of the independent contractors who led and supervised the swimming lessons. As the function in question had been delegated to an external contractor, it could not be argued that the LEA was primarily liable as a tortfeasor nor could vicarious liability apply as the contractors were independent contractors rather than employees of the LEA. The Appellant therefore argued that the LEA should be held responsible because of the existence and breach of a “non-delegable duty of care”.
Like vicarious liability, non-delegable duties are exceptions to the general rule that liability in negligence is fault-based. They operate to impose liability on a person for negligence committed in the performance of a function for which he has assumed responsibility, regardless of whether he carries out this function himself or delegates it to another (employee or otherwise). The law had previously established the existence of non-delegable duties of care in limited categories of case – for example between an employer and its workforce and a health authority and its patients – but such a duty had not previously been recognised in the relationship between an LEA and the pupils in its care. The Appellant invited the courts to recognise its existence in this new category of case. Both the Court of Appeal and the High Court had declined to do so.
Supreme Court Judgement
Having reviewed the basis of the imposition of a non-delegable duty in both English and Commonwealth cases, the Supreme Court unanimously decided that an LEA owes a non-delegable duty of care to the pupils in its care.
Lord Sumption, delivering the judgment of the court, considered that the relationship between an LEA and its pupils was analogous to the previously recognised categories of cases in which non-delegable duties arose in that it involved a class of persons who are both vulnerable and dependent, and over whom a significant degree of control is exercised. He further considered that where a school’s own control over its pupils was delegated to somebody else for the purpose of performing part of the school’s educational functions it was “wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate”.
Furthermore, the imposition of a duty was considered necessary to prevent anomalous outcomes in similar factual scenarios. The modern trend by LEAs, it was recognised, is to outsource many of their functions to independent contractors rather than using employees which means that vicarious liability would be inapplicable in situations where it previously would have rendered an LEA liable. The legal position for pupils in fee-paying schools was also significant in that there already existed an established non-delegable duty owing to the fact that the relationship between school and pupil in such scenarios is contractual (and therefore subject to statutory restrictions in contract law regarding the exclusion of liability). It was considered inappropriate for distinctions to exist between state and fee-paying schools as well as between employees and independent contractors.
Non delegable duties of care: the defining features
According to Lord Sumption, the non-delegable duty of care has four primary characteristics:
It arises in scenarios where the claimant is a patient or child or is for some other reason especially vulnerable or dependent on the protection of the defendant against the risk of injury, for example, prisoners and patients in hospitals and care homes.
It arises because of a pre-existing relationship between the claimant and the defendant, which places the claimant in the actual custody, charge or care of the defendant, independent of a negligent act or omission personally committed.
It imposes a positive duty on the defendant to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. This duty is non-delegable and personal, meaning that where a particular function is delegated to another, the duty endures.
The claimant has no control over how the defendant chooses to perform those obligations.
He further stated that a breach of this duty will occur where:
The defendant delegates the performance of some function, which is an integral part of the positive duty towards the claimant for which it has assumed responsibility, to a third party contractor.
The third party is exercising, for the purpose of the function delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.
The third party is negligent in the performance of the function assumed by the defendant and delegated by the defendant to him (and not in some collateral respect).
Application to the facts
On the facts of this case, it was determined that the delegated activities (the arrangement and supervision of swimming classes) were functions that the LEA had assumed an obligation to perform and which, therefore, fell within this non-delegable duty. As Lord Sumption stated: “The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty”. Essex County Council could, therefore, be liable alongside its contractor should negligence on the part the contractor be established at a later date.
The Supreme Court’s decision enlarges the scope of public authorities’ legal responsibilities towards not just school pupils, but potentially other categories of people who fulfil the relational criteria – for example, elderly residents of care homes and prisoners. Whether liability will be extended to these other categories of claimant will, it seems depend on whether it is considered ‘fair, just and reasonable to do so’.
There is obviously a lesson here for public authorities that it is important to ensure that any contracts entered into with third parties include terms to carry insurance which indemnifies the public authority in the event of negligence on the part of the third party (and that, if such insurance is already in place, the terms thereof be scrutinised). Local authorities/defendants will need to pursue independent third parties for an indemnity or contribution should these claims succeed.
Finally it is worth looking at the broader picture. Here, by a decision of the Supreme Court, the duties of public authorities have been extended by judge-led development of the law, so improving the position of claimants to some extent. This is taking place at the same time as Parliament has decided to reduce the extent of all defendants’ responsibilities for strict liability previously arising under health and safety regulations through implementation of the Enterprise and Regulatory Reform Act. Surely there is some irony in the fact that what the Supreme Court gives on one hand, Parliament takes away with the other.
Tracy Sell-Peters of DWF Fishburns acts for insurers on behalf of the Second and Third Defendants in this case. The Second Defendant ran the swimming school which provided the lifeguards and swimming teachers and the Third Defendant was the lifeguard at the time of the incident. The Second and Third Defendants were not involved in the recent appeal to the Supreme Court. The substantive trial on liability in this matter will probably be heard in the last half of 2014; a date has yet to be listed. Many of the points raised by the Claimant/Appellant in the Supreme Court are contested, both in relation to liability (breach of duty, causation and extent of injuries) and in relation to quantum. Quantum is to be dealt with at a separate trial.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.