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On 23 October, the Supreme Court handed down its judgment in the case of Woodland v Essex County Council. The case concerned the extent to which a local education authority owed one of its pupils a ‘non-delegable’ duty of care where a school had delegated – during the course of a normal school day – its responsibility for providing her with swimming lessons to an independent third party.

Factual Background

The tragic facts of this case are straightforward and have been set out in more detail previously on this blog. Briefly, the appellant suffered severe brain damage after getting into difficulty during the course of a school swimming lesson. She was under the supervision of a swimming teacher (Ms Burlinson) and a lifeguard (Ms Maxwell), who were acting as employees of Beryl Stopford (trading as Direct Swimming Services) with whom Whitmore Junior School had contracted. Negligence is alleged against these two individuals for failing to notice that the appellant was in danger.

The appellant brought her claim against a number of parties including the respondent (being the local education authority responsible for the school). The relevant aspect of the case against the respondent is whether or not it owed the appellant a ‘non-delegable’ duty of care, meaning that it would be potentially liable to her in negligence even though the school had delegated the provision of the swimming lessons under the national curriculum to Direct Swimming Services.

The High Court and the Court of Appeal both rejected this aspect of the appellant’s claim, striking out the allegation against the respondent, and the issue was appealed to the Supreme Court.

Issues

As a general rule, a party is not liable in negligence for the negligent actions of an independent contractor (provided the selection of that contractor by the party was not itself negligent) due to the principle that liability in negligence is strictly fault-based. The issue for the court to determine was whether, in exception to this general rule, the respondent owed the appellant a non-delegable duty of care – a duty to ensure that reasonable care was taken of her not only by the school and its employees, but also by any third party with which the school contracted to perform its educational functions.

The judgment of Lord Justice Tomlinson in the Court of Appeal borrowed much from the reasoning in Brown v Nelson & Ors [1971] LGR 20, and found that an ‘outsourcing’ public body’s duty would be discharged where it knows (i) the premises (ii) that the premises appear to be safe and (iii) that the premises are staffed by careful and competent persons. The Court of Appeal held that it would not be ‘fair, just and reasonable’ to extend the duty of care to situations where the care of the pupil is delegated to an external body, provided that ‘reasonable steps’ had been taken to ensure her safety.

Lord Justice Tomlinson noted that an alternative finding could have a ‘chilling effect’ on the willingness of education authorities to offer valuable external experiences (which could not be provided solely through the school’s staff or facilities) which was seen as something to be avoided. Accordingly the Court of Appeal affirmed the High Court’s decision to strike out the allegation of the existence of a non-delegable duty owed to the appellant by the respondent.

Supreme Court Decision

Overturning this decision, the Supreme Court allowed the appeal against the strike out order by a unanimous decision. The main judgment was given by Lord Sumption.

Following an extensive analysis of the case law, especially Lord Greene’s comments in Gold v Essex County Council [1942] 2 KB 293, 301 and Denning LJ’s in Cassidy v Ministry of Health [1951] 2 KB 343, Lord Sumption identified five ‘defining features’ which, he said, would typically give rise to the existence of a non-delegable duty of care and justify a departure from the general fault-based principle:

  1. the claimant is a patient or child or some otherwise vulnerable or dependent person;
  2. there is an antecedent relationship between the claimant and the defendant which puts the claimant in the care of the defendant and from which it is possible to assign to the defendant a positive obligation actively to protect the claimant from harm (as opposed to a duty simply to refrain from harmful conduct);
  3. the claimant has no control over how the defendant chooses to perform those obligations;
  4. the defendant has delegated some part of its function to a third party, and the third party is 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 goes with it; and
  5. the third party has been negligent in the exercise of that delegated function.

On the fourth point, Lord Sumption also drew an important semantic distinction in relation to the importance of ‘control’ by the defendant. Previous case law (see A (Child) v Ministry of Defence [2005] QB 183, 47 per Lord Phillips of Worth Matravers MR) had suggested that a non-delegable duty arose only in situations where the claimant suffered injury in an environment over which the defendant had control. On this reasoning, there would be no such duty on the present facts as, by outsourcing its function to a third party, the respondent had necessarily relinquished control over the relevant environment.

Lord Sumption stated that this could not be the correct result: “The essential element in my view is not control of the environment in which the claimant is injured, but control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility” (per Lord Sumption at paragraph 24, emphasis added). He gave the example of Myton v Woods (1980) 79 LGR 28, in which the Court of Appeal correctly dismissed a claim against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school. The school had no statutory duty to transport children, only to arrange and pay for it. A defendant could not be liable for an independent contractor unless “he delegates to the contractor the very duty which he himself has to fulfil”. Where a defendant does delegate to a third party a duty that the defendant has an obligation to perform, the third party is then also exercising the defendant’s non-delegable duty to protect the claimant from harm in relation to that delegated duty.

Lord Sumption acknowledged that this decision imposes an additional burden on providers of public services who choose to outsource certain functions (potentially leading to the ‘chilling effect’ referred to by Lord Justice Tomlinson) but added that a non-delegable duty would be imposed only where it is ‘fair, just and reasonable’ to do so. The Supreme Court’s justification for this extension of the law was as follows:

  1. It is consistent with the long-standing policy of the law to protect vulnerable and dependent people who are under the care of others.
  2. Parents are legally obliged to entrust their child’s care to a school despite having no control over how that care manifests or whether and how it is delegated to third parties.
  3. It is not an open-ended liability; public authorities will only owe a duty in respect of functions which they have assumed a duty to perform and where the control over the child has been delegated.
  4. Given that there is now an increasing trend for schools to delegate functions which historically have been performed by internal teaching staff, this ‘extension’ can be seen largely as a replacement for what would have previously been caught under the doctrine of vicarious liability.
  5. The responsibilities of fee-paying schools are already ‘non-delegable’ (because they are contractual) and there is no rational reason why the absence of consideration should lead to a different conclusion.

Lady Hale provided a supporting judgment in which she emphasised the importance of the law being seen as fair, consistent and logical. Building on the fifth point above, she posited the hypothetical situation of three injured children who were pupils of different schools and the perverse result which would be created by upholding the Court of Appeal’s finding. Pupil A, who attends an independent school which provides swimming lessons via a contract it has with another school, can claim under the (presumed) contractual obligation of the school to ensure her safety. Pupil B, who attends a large state-run school which provides swimming lessons run by the school’s staff, has protection as the local authority is vicariously liable for the negligence of its staff. However Pupil C, attending a small state-run school which outsources its swimming lessons to an independent service provider, will only be protected if the school can be said to owe her a non-delegable duty of care. The reason the school owes Pupil C a non-delegable duty of care, according to Lady Hale, is because it has undertaken to teach her:

“[T]hat responsibility is not discharged simply by choosing apparently competent people to do it. The… school remains personally responsible to see that care is taken in doing it.”

Comment

There is certainly a danger that this decision may have a chilling effect on the willingness of some public authorities to outsource their core functions. In the event that certain functions cannot be delivered internally (either through a want of facilities or an inability to provide them in a cost-effective manner), there could be a resultant downgrading in the array of services offered by public bodies such as schools.

But this should not detract from the fact that the Supreme Court’s decision in this case must be the only equitable conclusion to this issue. Fundamentally, it would not be fair for Pupil C to be barred from a claim in negligence against her school where Pupils A and B were not. It is also suggested that any perceived chilling effect should be reversed by an increase in the level of funding provided to local authorities, allowing them the resources to either enhance supervision of their outsourced functions or alternatively to offer more on an internal basis. Ultimately, this is a policy matter for Parliament and not for the Courts’ involvement.

This case will now return to the High Court for a determination on whether there was negligence. If it is found that the third parties in this case were negligent then the respondent will be liable under its non-delegable duty of care to the appellant.