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Woodland v Essex County Council, Supreme Court, 30 October 2013

14 November 2013
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 1st 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 parentis“. 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 Court of Appeal dismissed the claimant’s appeal.

The claimant appealed further to the Supreme Court.

The decision

Liability in tort in principle depended upon proof of a personal breach of duty. To that principle there was at common law only one true exception, namely, vicarious liability. Although the boundaries of vicarious liability had been expanded it had never extended to the negligence of those who were truly independent contractors such as Mrs Stopford was. On the footing that the local authority was not vicariously liable for her negligence or for that of the teacher or the lifeguard, the question was, what was the scope of the authority’s duty to pupils in its care? The law of negligence was generally fault-based. The defendant would be held liable only for doing negligently that which he did at all or for omissions which were in reality a negligent way of doing that which he did not do at all. The expression ‘non-delegable duty’ had become the conventional way of describing those cases in which the ordinary principle was displaced and the duty extended beyond being careful to procuring the careful performance of work delegated to others. English law had recognised that non-delegable duties existed but had no single theory to explain when or why. There were two broad categories of case in which such a duty had been held to arise. The first related to circumstances in which the defendant employed an independent contractor to perform some function which was either inherently hazardous or liable to become so in the course of the work.

The second category arose where three characteristics applied. Firstly, the duty arose not from the negligent character of the act but because of an antecedent relationship between the defendant and the claimant. Secondly, the duty was a positive duty to protect a particular class of persons against a particular class of risks. Thirdly, the duty was, because of that relationship, personal to the defendant. This version of non-delegable duties originated in the law of nuisance and the origins of the duty lay now in what would be regarded as a rising from an assumption of responsibility imputed to the defendant by virtue of the special character of his relationship with the claimant. The circumstances had to be such that the defendant could be taken not just to have assumed a positive duty but to have assumed responsibility for the exercise of due care by anyone to whom he might delegate its performance. This was a more onerous obligation and had been considered in a number of cases involving injuries sustained by employees, hospital patients, school pupils and invitees. The main problem with regard to the development of the law in this area was to ensure that the exception did not eat up the rule. Non-delegable duties of care were inconsistent with the fault- based principles on which the law of negligence was based and were therefore exceptional. The difference therefore between an ordinary duty of care and a non-delegable duty had to be more than a question of degree. In particular the question could not depend simply on the degree of risk involved in the relevant activity because the ordinary principles of tort were perfectly capable of answering the question, what duty was an appropriate response to a given risk. The time had come to recognise that Lord Geeene in Gold v Essex County Council and Lord Justice Denning in Cassidy v The Ministry of Health, were correct in identifying the underlying principle. Similarly the line of authority that had arisen in the Australian cases were broadly correct in their analysis of the factors that had given rise to non-delegable duties of care. If the highway cases and the hazard cases were put to one side the remaining cases were characterised by the following defining features:

1.  The claimant was a patient or a child or for some other reason especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples were likely to be prisoners and residents in care homes.

2.   There was an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself which put the claimant in the custody, charge or care of the defendant and from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm and not just a duty to refrain from conduct which would foreseeably damage the claimant. It would be characteristic of such relationships that they involved an element of control which would vary in intensity from one situation to another but was clearly substantial in the case of school children.

3.   The claimant had no control over how the defendant chose to perform those obligations.

4.   The defendant had delegated to a third party some function which was an integral part of the positive duty which it had assumed towards the claimant; and the third party was exercising for the purpose of the function delegated to it, the defendant’s custody or care of the claimant and the element of control that went with it.

5.   The third party had not been negligent in some collateral respect but in the performance of the very function assumed by the defendant and delegated to the third party.

However, courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. However, no unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria summarised above. The reasons were because:

a)   The criteria were consistent with the long-standing policy of the law to protect the vulnerable and dependent. Schools in order to educate were allowed authority and control over pupils. When that control was delegated to someone else it was reasonable that the school should be answerable for the careful exercise of its control by the delegate.

b)  Parents were required by law to entrust children to a school. They generally did so in reliance on the school and had no knowledge or influence over the arrangements that the school made to delegate specialised functions.

c)   It was not an open-ended liability; there were important limitations on the range of matters for which a school or education authority assumed non-delegable duties. They were liable only for the negligence of independent contractors if and so far as the latter were performing functions which the school had assumed for itself a duty to perform, generally in school hours and on school premises or at other times or places where the school might carry out its educational function. They would be liable for the negligence of independent contractors where on analysis their own duty was not to perform the relevant function but only to arrange for its performance. They would not be liable for the default of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor would they be liable for the negligence of those to who no control over the school had been delegated, such as bus drivers, theatres, zoos or museums.

d)  It was important to bear in mind that until recently most of the functions routinely delegated by schools to independent contractors would have been performed by staff for who the authority would have been vicariously liable. The recognition of limited non-delegable duties had become more significant as a result of the growing scale on which the educational and supervisory functions of schools were out-sourced.

e)  The responsibility of fee paying schools was already non-delegable because they were contractual. In this context there seemed no rational reason why the mere absence of consideration of contractual consideration should lead to an entirely different result when comparable services were provided by a public authority. A similar point could be made about the technical distinctions that would otherwise arise between privately funded and NHS hospital treatment.

f)   In this case on the limited facts pleaded or admitted, the respondent education authority had assumed a duty to ensure that the claimant’s swimming lessons were carefully conducted and supervised. The claimant was entrusted to the school for certain essential purposes which included teaching and supervision. Swimming lessons were an integral part of the school’s teaching function. It did not occur on school premises but they occurred in school hours in a place where the school chose to carry out this part of its function. The teaching and the supervisory functions of the school and the control of the child were delegated by the school to Mrs Stopford, through her to teacher and lifeguard , as well to the extent necessary to let them give swimming lessons. The negligence occurred in the course of the very function 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 education authority was in breach of its duty.

Appeal allowed


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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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