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Delegation, delegation, delegation, that's what you need: Woodland v Essex CC in the Supreme Court

The Supreme Court has today (October 23rd 2013) handed down its unanimous decision in Woodland v Essex CC [2013] UKSC 66, reversing the decisions of the lower courts, and holding for the first time that a school (or, in the case of a maintained school, a local education authority) owes a non-delegable duty to the children in its care. The case arose from brain injury suffered by the claimant, who when 10 years old attended a swimming lesson organised by her school.  The LEA had contracted with a provider of swimming lessons, who employed tutors and lifeguards.  The claimant got into difficulties and was found "hanging vertically in the water".  Sadly, despite resuscitation, she suffered hypoxic brain damage. The appeal arose from an application by the LEA to strike out an allegation in the Particulars of Claim that it owed a "non-delegable duty of care" to the claimant.  The application succeeded before Langstaff J [2011] EWHC 2631 (QB), [2012] ELR 76 and, by a majority, the Court of Appeal [2012] EWCA 239, [2013] 3 WLR 853 upheld the judge's decision.  Lord Sumption, giving the principle judgment, lamented that the application had been made given that the LEA would still have faced an allegation that insufficient care had been taken in the selection of the contractor: at [2]. Lord Sumption distinguished between two categories of case in which a defendant has been found to owe a "non-delegable" duty of care, in relation to which he is not able to rely on entrusting performance of the action in question to an apparently competent independent contractor.  One was the amorphous category of cases relating to "extra-hazardous" operations: at [6].  That was not relevant to the case, although he suggested that it was "ripe for re-examination".  The second was a situation which arose from a special relationship, we he defined in the following terms: at [7]..... It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. .... The principle area in which a duty of this kind has arisen is employment: at [13].  There are also dicta tending to confirm that it applies to hospitals and similar institutions: at [14-16].  After reviewing Australian authority at [17-21] he reached the conclusion that it was appropriate to recognise the basis of a general "non-delegable" duty in cases "characterised by the following defining features" at [23]. (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is 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 will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. The degree of risk involved in the activity and the lack of control of the defendant over the environment in which injury occurs were, by contrast, not relevant: at [21], [23]. Lord Sumption, and Lady Hale who delivered the only other judgment agreeing with him, recognised that the decision involves a significant extension of the scope of a duty of care owed by schools or LEAs.  Their main reasons for doing so were as follows: - The vulnerability of children and the control given over them by schools and their staff makes it reasonable for the school to be answerable for the default of those to whom the school confers authority in respect of certain functions: at [25(1)]. - Parents were not in a position to do other than rely on the school in relation to how it made its arrangements for the education of children: at [25(2)]. - Although LEAs were increasingly outsourcing their functions, historically services such as those provided by the contractor would have been provided by employed staff, so the liability of LEAs would not be significantly increased: at [25(4)], [40]. - If the "non-delegable" duty did not exist, odd distinctions would exist between private schools (who would owe a non-delegable duty under contract) and state schools that did or did not contract out functions such as this: at [25(5)], [29-32]. The other judges agreed with both judgments. The appropriateness of outsourcing by public authorities has been subject to extensive debate on economic, social and political grounds.  It is hard to deny the strength of the policy reasons given by the court for recognising the duty owed to pupils as "non-delegable".  What may be of significant concern, however, to public authorities (or rather their insurers) is the fact that the scope of their insureds' duties is significantly expanded by this decision.  It may well be that extensive outsourcing of peripheral aspects of schooling is a relatively recent phenomenon, but it is to be presumed that when setting premiums, insurers to public authorities give careful consideration to the legal extent of the liabilities of those authorities.  It would seem entirely possible that premiums sought will have been lower than they would have been (and will be) in light of this decision. Experience also suggests that contractual arrangements made by local authorities with contractors of this nature are often not the subject of detailed consideration and may be poorly evidenced, thus hampering attempts to obtain indemnities from contractors.  Those responsible for negotiating and drafting contracts with contractors will need to pay additional attention to resolving the issue of who meets liabilities for those injured as a result of a contractor's work, and ensuring that agreements are properly recorded and are not then lost in a morass of paper or destroyed once the next contract has been made.  Greater emphasis should also be placed in verifying that contractors are properly insured to meet potential liabilities arising from their activities. Finally, in case insurance underwriters are considering booking appointments with their cardiologists as a result of the foregoing content of this article, it is important to emphasise the limitations of this newly-recognised duty.  The main one is that the duty only applies to a situation "which is an integral part of the positive duty which he has assumed towards the claimant".  In the case of schools, that means keeping children safe while they are being educated.  The difficulty, as ever, will be determining the scope of the assumed duty.  Lord Sumption provided some important guidance at [25(3)] in the following terms: .... They are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions). In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours .... Lady Hale also gave some guidance at [39]: Taking care to keep the children safe is an essential part of any swimming lesson and of the responsibility which the school undertakes towards its pupils. That is what the life-guard is for. These features clearly would not apply to the negligent ice-cream vendor or zoo-keeper. They would not normally apply to the bus driver but they might do so if the school had undertaken to provide transport and placed the pupils in his charge rather than that of a teacher. The boundaries of what the .... school has undertaken to provide may not always be as clear cut as in this case .... but will have to be worked out on a case by case basis as they arise. There can be no doubt that this decision is far from the final word on this topic. 

End of term report

This has been a busy term for schools and a successful one for those who insure them.   What lessons can be learnt from the four important school cases which have been decided since March 2012? First up, on 9 March 2012, was the decision of the Court of Appeal in Woodland v Essex County Council [2012] EWCA Civ 239 in which the Court of Appeal, by a majority, held that it was not appropriate to extend the law of negligence to provide that a local authority owed a non-delegable duty of care to a pupil at a school to ensure that reasonable care was taken to secure her safety while she attended a swimming lesson arranged by the school but provided by a third party. Four days later, on 13 March 2012, in (1) XVW (2) YZA v (1) Gravesend Grammar School for Girls (2) Adventure Life Signs Ltd [2012] EWHC 575 (QB) Mackay J. found a school and a specialist expeditions company not liable for the rape of two female pupils by a local man who had acted as a guide during an overseas school trip. The judge held that neither the school nor the company could be held vicariously liable for the assault and since the attack had not been reasonably foreseeable it would not be fair, just or reasonable to define the scope of their duty of care to the girls so as to require them to have taken special precautions to avoid it. The claim also failed in Wilkin-Shaw v (1) Fuller (2) Kingsley School Bideford Enterprises Ltd [2012] EWHC 1777 (QB) in which judgment was given on 28 June 2012. Owen J. concluded that the claimant had failed to show that the death of her daughter while on a school trip training for the Ten Tors expedition on Dartmoor was the result of the negligence of the teacher who organised and supervised the training. Finally, as Ian Clarke discusses in the previous post, in Hammersley-Gonsalves v Redcar & Cleveland Borough Council [2012] LTL Document No. AC9101225, the Court of Appeal in an extempore judgment on 13 July 2012 held that a local authority was not liable in negligence for an injury sustained by a school pupil when he was hit by another pupil's golf club at the start of a golf lesson. As Ian points out, the court accepted that the teacher had provided adequate supervision and could not have been expected to see every action of all 22 boys at all times. Do these cases demonstrate that section 1 of the Compensation Act 2006 is having an effect?  This section was enacted by Parliament in response to wide spread criticisms of the so-called “compensation culture” and is, so far as I am aware, the only example of a provision of an act of parliament being used not to change the law but to allay public concerns about how the law is applied in practice. However, in Wilkin-Shaw Owen J. made clear his view that section 1 of the Compensation Act 2006 added little or nothing to the existing common law and observed that “it is somewhat difficult to see why it was felt necessary to enact it, and why, as enacted, it was couched in discretionary terms” - see [42] of the judgment. In my view, the “take home message” from these four cases is that it remains the law that just because there is a risk involved in a particular activity, those who owe a duty of care in relation to that activity are not automatically liable for damages when an accident happens.  As the cases make clear, the duty of care expected of schools arranging trips and activities is that of the reasonably careful parent taking into account “the nature and conditions of out-of-school activities of the type being undertaken ... [with] the appropriate level of experience and appropriate level of competence to discharge any role required of them” – see, for example, [39] and [40] of the judgment in Wilkin-Shaw. Lesson over! Image - http://www.freefoto.com/index.jsp