Reflections on the Supreme Court decision in Woodland v Essex County Council

Last year the Supreme Court allowed the appeal in Woodland v Essex County Council, overturning the decision of the Court of Appeal, and held that a school owed a non-delegable duty of care to ensure that school swimming lessons were conducted and supervised with reasonable care. As the duty could not be delegated, the local authority was held liable for the negligence of the third party contractor in carrying out the function which the school itself had a duty to fulfil.

The Supreme Court laid down the requisite criteria for a non-delegable duty of care to exist.

Facts

The appellant (claimant), aged 10 at the time of the incident, suffered a severe brain injury after getting into difficulties during a swimming lesson which Whitmore Junior School had a responsibility to provide. The school had delegated this responsibility by arranging for the swimming lessons to be provided by a private contactor, Direct Swimming Services. The Appellant brought a claim against various parties responsible for the school including the respondent local authority (defendant).

The issue before the Supreme Court was whether the defendant owed the claimant a non-delegable duty of care that would make it potentially liable for the negligence of its private contractors, despite the fact that the school had delegated the provision of swimming lessons.

The High Court and Court of Appeal rejected this part of the claim and found that no such duty existed. They held that the school had discharged its duty of care when it entrusted the provision of swimming lessons to an apparently competent organisation.

The decision of the Supreme Court

The decision of the Supreme Court was unanimous and the leading judgment was given by Lord Sumption.

He set out five “defining features“ which he believes are the primary characteristics for cases involving a non-delegable duty of care. They are likely to prove to be a useful test for future cases of a similar nature.

1. The claimant is a patient or child or especially vulnerable or dependent on the protection of the defendant against the risk of injury.
2. There is an antecedent relationship between the claimant and the defendant which places the claimant in the actual custody, charge or care of the defendant and from which it is possible to attribute to the defendant the assumption of a positive duty to protect the claimant from harm, not just a duty to refrain from conduct which will foreseeably harm the claimant.
3. The claimant has no control over how the defendant chooses to perform those obligations.
4. The defendant has delegated its function to a third party which is an integral part of the positive duty which he owes to the claimant; and in exercising the function delegated to him the third party assumes the defendant’s custody or care of the claimant and the control element connected with it.
5. The third party has been negligent in the performance of the function delegated by the defendant to him.

Fair, just and reasonable

Lord Sumption stated that a non-delegable duty of care should only be assigned to schools if it is “fair, just and reasonable” to do so. He does not consider it an unreasonable burden to place on public service providers for the following reasons:

1. The above criteria are consistent with the established policy of the law to protect the inherently vulnerable and highly dependent people under the care and authority of others.
2. Parents are legally required to entrust their child to a school and have no knowledge or influence over how the school may delegate their functions or the competency of the delegates.
3. Liability is not open-ended and public service providers will only be liable for the negligence of independent contractors if the delegate is performing a function(s) for which the school has assumed a duty to perform.
4. As functions previously performed internally are increasingly delegated by schools to third party contractors, the recognition of limited non-delegable duties replaces those functions for which the public authority would have been vicariously liable.
5. The responsibilities of fee-paying schools are already non-delegable as they are contractual and it is not rational that an absence of consideration should result in a different outcome when comparable services are provided by a public authority.

This final point is well-illustrated by an example given by Lady Hale in her judgment. She highlighted the unfairness of a decision that would see a pupil who attended a fee-paying school and a pupil whose school carried out swimming lessons internally protected by a contractual obligation of the school and vicarious liability respectively, while a pupil in the claimant’s circumstances would benefit from neither. The pupil in the claimant’s situation will only be protected if the school owes her a non-delegable duty of care.

Application of these principles to the facts

The defendant assumed a duty to ensure the claimant’s swimming lessons were conducted and supervised carefully and these swimming lessons were an integral part of the school’s teaching and supervisory functions which fell within its non-delegable duty. As it was these functions that were delegated to the contractors, Lord Sumption stated that “it must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty.”

Impact of this decision

The decision in Woodland will be of great importance to public authorities with responsibilities towards patients, children and vulnerable people for whose care the public authority has accepted responsibility.

Local authorities, who over the past few years have increasingly outsourced services, may want to reconsider their practices and polices in light of the Supreme Court’s decision.

There is the potential to extend the scope of non-delegable duty of care to elderly residents of care homes, children in the care of social services and prisoners. Such cases, will of course be subject to the ‘fair, just and reasonable’ test set out by the Supreme Court.

Local authorities should carry out a risk analysis on their outsourced services to consider whether the saving of outsourcing such services is still beneficial considering the extension of non-delegable duty of care. It would be advisable to ensure all current contractual terms provide sufficient and adequate indemnity and insurance provisions in the event that a claim is made.