0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Woodland v Essex County Council, Court of Appeal, 9 March 2012

15 March 2012
The issues

Swimming pool – duty of care – swimming lesson arranged by school provided by third party

The facts

The claimant was a pupil at Whitmore Junior School in Basildon. The school was the responsibility of Essex County Council. On the 1 July when the claimant was 10 years old, she went to a swimming pool in Basildon. The class was divided into groups. The claimant was placed in a group of better swimmers who used the deep pool. The lesson was supervised by a swimming teacher who was in the pool and a life guard who stood at the side of the pool. The pool was run by Basildon County Council. Neither the life guard nor the swimming teacher were employees of the school. The claimant got into difficulties and had to be pulled from the pool. She suffered severe hypoxic brain injuries. The claimant alleged that Essex owed the claimant a non-delegable duty of care in the capacity ‘loco perentis’. It was alleged that Essex County Council were vicariously liable for the negligence of both the 2nd defendant and the life guard and directly liable for failure itself to take reasonable care to ensure that the 2nd defendant was an appropriate and competent independent contractor to whom to delegate responsibility for the provision of swimming lessons. The judge found that the claim in respect of the non-delegable duty of care was bound to fail on the pleaded facts and struck out that part of the pleading.

The claimant appealed.

The decision

The existence of the duty contended for would amount to a departure from the general rule that an employer of an independent contractor was not liable for the negligence or torts committed by that contractor in the course of executing the task for which it had been engaged. The claimant argued for a special duty and relied by analogy on A Child v The Ministry of Defence (2004) and Farraj v Kings Health Care NHS Trust (2009). The justification for imposing a non-delegable duty in those circumstances was the special relationship that existed between a hospital and its patients. This special duty had been recognised by the Australian courts in Condiz v The State for Transport Authority. However, the duty contended for in this case went beyond the decisions of the English and the Australian courts, because until now a non-delegable duty had only been found in situations where the claimant suffered an injury whilst in an environment over which the defendant was in control. The court was willing to accept for the purposes of the analogy that pupils were, like patients, a vulnerable class of persons who were in special need of care. The characteristic of the special relationship which had been found in the Australian courts to justify the imposition of a non-delegable duty of care also assisted in defining the limits of that duty. The essential elements of that special relationship were that the hospital or school had undertaken the care, supervision and control of the vulnerable person. Whilst the categories of negligence were never closed it was important to have firmly in mind the general rule that the duty to take reasonable care might be discharged by entrusting the performance of a task to an apparently competent independent contractor, and that any departure from that general rule had to be justified on policy grounds. There were no such justifications. The claimant had suffered her injuries in an environment which was not under the control of the school staff whilst engaged in an activity which was not conducted or overseen by the school staff. In all the circumstances it would not be fair, just or reasonable to impose upon the authority the non-delegable duty for which the claimant contended (Kitchin LJ). To impose such a duty would be for the Supreme Court. The imposition of such liability would have a chilling effect of the willingness on education authorities to provide valuable educational experiences for their pupils (Tomlinson LJ).

Comments

Lord Justice Laws who delivered the first judgment dissented.

focus on...

Legal updates

Non-payment of insurance premiums during the Coronavirus pandemic

The forced closure of many businesses as a result of the Coronavirus pandemic has had a huge impact on the nation’s Gross Domestic Product (GDP). Recent reports from the Office for National Statistics state that the economy was 25% smaller in April than it was in February this year.

View

Legal updates

Noise-induced hearing loss claims – documentation and the expert engineer

Guest writer, Finch Consulting Senior Consultant Teli Chinelis applies his expertise in preparing engineering reports in relation to noise-induced hearing loss (NIHL) claims to explain information that is required from the claimant and information that is required and is advisable to be retained by employers, in order to ensure that claims can be fairly represented.

View

Legal updates

Contingent loss in negligence claims

Contingent loss is relevant to limitation; specifically, the date at which a claimant’s cause of action accrues for the purposes of a claim in the tort of negligence (as many claims against professional advisers are framed).

View

Legal updates

Legal and regulatory monthly update - September 2019

The latest update covering delegated authority, insurance product development, the senior insurance managers regime, data protection, operational control frameworks, Lloyds market, and horizon scanning.

View

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.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up