Case summary: Woodland v Essex County Council 2013 UKSC 66
Supreme Court clarifies circumstances in which a school or local education authority can be liable for negligence of independent contractors.
The Supreme Court gave judgment on 23rd October 2013 in the case of Woodland v Essex County Council. This case is relevant for schools and local authorities. It should also be read by institutions responsible for children, patients or other vulnerable or dependant people.
This case concerned whether the education authority had a “non-delegable duty of care” towards pupils. In other words whether the duty extended to procuring the careful performance of work delegated to independent contractors. It does not concern any question of negligence in appointing the contractor in the first place.
There is a tragic background to this case. In July 2000 the appellant was a ten year old pupil of a school under the responsibility of the respondent education authority, Essex County Council. The then national curriculum required teaching of Physical Education in a number of forms including swimming. The swimming lessons were provided by an independent contractor who contracted with the respondent. The contractor provided a swimming teacher and lifeguard. During a swimming lesson in normal school hours the appellant suffered difficulty in the water. She suffered a serious hypoxic brain injury.
The appellant issued proceedings for negligence against a number of respondents including the education authority. The claim included an allegation that the respondent owed the appellant a non-delegable duty of care so that it would be liable for negligence on the part of the swimming teacher and lifeguard. The respondent denied that it owed such a duty and the allegation was struck out by the High Court and their decision upheld by the Court of Appeal.
On appeal by Woodland, the Supreme Court reversed the decision of the lower Courts and gave a unanimous judgment holding that the education authority did have a non-delegable duty of care towards the pupil.
Apart from vicarious liability, which does not extend to truly independent contractors, liability for negligence depends on proof of a personal breach of duty. The question in this case is what was the scope of the education authority’s duty to pupils in its care? Was it to procure that reasonable care was taken in the performance of functions delegated to others? They would through vicarious liability be liable for employees’ negligence.
Lord Sumption gave the lead judgment. It was held that non-delegable duties of care are exceptional. They can arise in cases with these characteristics:
Lord Sumption, para 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 risk of injury. Other examples are likely to be prisoners and residents in care homes.
(2) There is a antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which puts 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 it is clearly very substantial in the case of schoolchildren.
(3) The claimant has no control over how the defendant chooses to perform those obligations ie 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.”
Lord Sumption noted these reasons:
- The long standing policy to protect those who are “vulnerable and highly dependent on the observance of proper standards of care with a significant degree of control over their lives”.
- “Parents are required by law to entrust their child to a school”. Parents generally have no knowledge of or influence over the arrangements the school may make to delegate functions, or the basis on which they do, or the competence of those carrying out the functions.
- “It is not an open – ended liability”. A school or education authority will only be liable for the negligence of independent contractors if the contractor is performing a function 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 They will not be liable for the negligence of independent contractors where the duty is not to perform the relevant function but only to arrange for its performance for example extracurricular activities outside school hours.
- “There is a growing scale on which the educational and supervisory functions of schools are outsourced”.
- A pupil attending a fee paying school could in similar circumstances sue for breach of contract. “There seems to be no rational reason why the mere absence of consideration should lead to a ....... different result when comparable services are provided by a public authority”.
- “The position of parents is very different to that of schools.” Schools provide a service pursuant to contract or statutory obligation. Parents control over their children is based on their intimate relationship. “Common law has always been extremely cautious about recognising legally enforceable duties owed by parents on the same basis as those owed by institutional carers”.
This point of law being clarified, the case is referred back to the High Court for a determination about negligence.
Schools and organisations who are responsible for vulnerable or dependent people should take note of this judgment. The practical consequence is potential liability for negligence of independent contractors performing functions delegated to them that the institution is obliged or takes upon itself to perform. Organisations should at the least check contractors’ levels of insurance cover if they do not do so already.
If you require legal advice about this area of the law please contact Alice Lane.