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Does a school have a non-delegable duty of care towards its pupils – not merely to take reasonable care of them itself but also to provide that reasonable care is taken of them by third parties, even whilst outside the premises of the school?

This appeal concerns the standard of the duty of care to be imposed on a school or local authority and the extent to which they can be found liable for the negligent acts or omissions of an independent third party.

Given the increase in ‘outsourcing’ of the functions of public authorities, this case has potentially important significance in delineating the boundaries of liability of public authorities which delegate their functions to third parties.

Factual Background

The Appellant was a pupil at Whitmore Junior School which was run by Essex County Council (“Essex”). The school was obliged to provide swimming lessons to its pupils under the National Curriculum. Given that no such facilities were available at Whitmore, it arranged for lessons to take place off-site at a local pool owned by Basildon Council with the independent swimming teacher Beryl Stotford (trading as Direct Swimming Services).

During the course of a lesson the Appellant suffered severe hypoxic brain damage as a result of an incident in which she nearly drowned.  A claim was brought on her behalf alleging that Direct Swimming Services’ negligence during the lesson was the cause of her injuries. The Appellant claimed that Essex owed a non-delegable duty not only to take care of pupils itself but also to provide that reasonable care is taken of them by any third parties (such as Direct Swimming Services) it employs to fulfil its obligations under the National Curriculum. Essex applied to have the claim struck out in so far as it alleged the existence of such a non-delegable duty.

Essex’s application was granted by the High Court and the decision was upheld in the Court of Appeal by a majority decision of two to one.

Court of Appeal Decision

In affirming the decision of Langstaff J in the High Court, the Court of Appeal based its decision on a number of analogous cases involving the treatment of hospital patients. It has been established that there are strong policy reasons (owing to the vulnerability of patients) for imposing liability on hospitals for any negligence in the delivery of treatments which it offers to patients, even for those treatments which are administered by a person who is not employed by the hospital. Crucially however, this principle has not been extended to circumstances where the treatment is carried on outside the hospital’s premises (Farraj v King’s Healthcare NHS Trust [2009]). The principle in Caparo Industries Plc v Dickman [1990], that it would not be ‘fair, just and reasonable’ to extend Essex’s duty of care, was therefore applied by the Court to these facts.

Lord Justice Tomlinson also noted that imposing liability on Essex in such circumstances could have a significant ‘chilling effect’ on the willingness of schools to provide valuable experiences (such as swimming lessons) to their pupils.

The principle in Brown v Nelson and others [1971], in which it was decided that public bodies have “a general duty to take reasonable steps for the safety of those under their charge”, therefore remains the guiding authority. So long as the public body knows the premises, knows that the premises appear to be safe and knows that they are staffed by competent and careful persons, this duty will be discharged. Applying this to the present facts, the pool was staffed by a lifeguard and Ms Stotford was a qualified swimming instructor. The Court of Appeal was therefore satisfied that Essex had discharged its duty towards the Appellant. The non-delegable duty of care therefore appears to apply only to negligence attributable to a public body’s own premises or its own staff. Once the pupil is sent off-site, provided that the facility appears safe and the staff appears competent, the duty of care is discharged.

Lord Justice Tomlinson also discussed whether or not the principle in Brown (the requirement of competence) could be interpreted to include a duty on a public authority to take reasonable steps to ensure that any third party service provider has in place a suitable policy of public liability insurance, although he noted that no argument was offered on this point.

Comment

This appeal to the Supreme Court is likely to revolve significantly around whether or not the public body had ‘control’ over the actions of its agent. In his dissenting judgment in the Court of Appeal, Lord Justice Laws suggested that a non-delegable duty is owed by a school or hospital ”to see that care is taken for the safety of a child or patient who (a) is generally in its care, and (b) is receiving a service which is part of the institution’s mainstream function of education or tending to the sick” (emphasis added). On this interpretation, the fact that the school ‘outsourced’ swimming lessons to competent staff in safe facilities may not be enough to discharge its duty of care.

Based on the above, it appears likely that the Supreme Court will find that one of the following applies:

  1. That the appropriate test should be based on the degree of ‘control’ which the public authority exercises over the delivery of the given function. Where the service provided is no longer within its control, the public authority should have no liability, provided that it has taken care to ‘outsource’ the function to a competent staff which uses safe facilities.
  2. That Lord Justice Laws’ wider interpretation should be applied: a duty of care is owed to those who are a) generally in the public authority’s care, and b) receiving services as part of the public authority’s ‘mainstream function’, even though such services might have been ‘outsourced’ to a third party.
  3. That a narrower interpretation is correct: part of a public authority’s responsibility when selecting a ‘competent’ third party service provider is to take reasonable steps to ensure that such third party has a suitable policy of public liability insurance in place.

It will therefore be interesting to see how the Supreme Court approaches this appeal, the result of which might have wide-reaching implications for all institutions which employ third parties in the provision of education or healthcare.