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schools or academies potentially liable – without fault

6 November 2013

Woodland (Appellant) v Essex County Council (Respondent)

The decision of the Supreme Court in this case will give concern to Education Authorities, Schools, Academies and importantly, their respective insurers. The case established that a local authority (responsible for a school) could be liable, without fault on its part, for the negligence of an independent contractor.

The facts of the case were tragic. A 10 year old girl was taking part in a swimming lesson arranged by her school but delivered by an independent contractor. During the lesson the appellant got into difficulties and suffered a very serious brain injury.

In general the law requires a party to have done something negligently or failed to have done something for a liability to attach. However, there are some very limited exceptions and this case extends them in certain circumstances to those responsible for schools.

The question before the Supreme Court was whether the school could be held responsible even though it had delegated the delivery of the lesson to an outside organisation. In other words the school itself had not been negligent.

The Court reviewed the matter and decided that these circumstances could fall within the realm of a non-delegable duty, meaning that those responsible for the children could be held liable even where they themselves had purported to delegate responsibility. The Court set out the circumstances when a duty would be non-delegable:

  1. The claimant is vulnerable e.g. a patient or a child
  2. There is an antecedent relationship that places the claimant in the custody or care of the Defendant from which a positive duty to protect the claimant can be imputed
  3. The claimant has no control over how the Defendant performs his obligations
  4. The function delegated by the defendant is ‘an integral part’ of the positive duty assumed
  5. The third party has been negligent in the performance of this very duty

In this case the Education Authority satisfied the first 4 points and therefore could be held liable if the third party is found to have been negligent.

Schools may feel this is a worrying extension of the general principle relating to liability. However, note the exceptions referred to in the case. This is not an open ended liability. They are only liable for the acts of independent contractors so far as their primary duties are concerned. They will not be directly liable for contractors providing extra-curricular activities e.g. trips in the holidays or trips to zoos, museums etc.

The Supreme Court also found justification in their reasoning by stating that until very recently most of the functions now routinely delegated by schools would have been performed by the school’s own staff so a liability would exist if there was negligence. Outsourcing has provided a new perspective requiring the law to keep up.

For more information watch our quickcall question this week video where Adrian talks about the case of Woodland v Essex County Council and how this impacts on your school or academy.

watch our video

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For further information please contact Adrian Shardlow on 0115 976 6091

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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