Council loses landmark Supreme Court case over scope of duty to pupils

A county council has lost a Supreme Court battle over the scope of a local education authority’s duty to pupils in its care and its responsiblity for outside contractors.

In Woodland v Essex County Council [2013] UKSC 66 the appellant, Annie Woodland, had been a ten-year-old pupil at a junior school in Essex, where Essex County Council is the local education authority.

Essex CC was required under the National Curriculum to provide swimming lessons for pupils. Regular lessons were held in normal school hours at a pool owned by Basildon Council.

The lessons were provided through a contract with Beryl Stopford, trading as ‘Direct Swimming Services’.

On 5 July 2000, the girl was involved in a near drowning incident. She suffered a serious hypoxic brain injury and is now incapable of looking after her own affairs.

Proceedings for negligence were brought on her behalf against a number of parties, including the county council. Neither the teacher who took the class nor the lifeguard who was in attendance were employed by Essex CC.

The case against Essex included an allegation that the local authority owed the girl a ‘non-delegable duty of care’, and so was liable for any negligence on the part of the swimming teacher or the lifeguard.

Essex sought to strike out the pleadings in so far as they claimed there to be a ‘non-delegable’ duty.

The High Court granted the local authority’s application on the basis that there was no real prospect of success on that point.

The Court of Appeal upheld that decision by a majority, although it was agreed that there might be circumstances where such a non-delegable duty could be owed by a local authority. Laws LJ issued a dissenting judgment that would have held the duty to be non-delegable on the facts.

The parents of the child appealed to the Supreme Court, which has today (23 October) ruled unanimously in their favour.

Lord Sumption, who gave the main judgment, identified the question before the court as the scope of the council’s duty to pupils in its care.

“Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them?”

The judge pointed out that, on either view, any liability of the education authority for breach of it was personal, not vicarious.

Lord Sumption said the main problem with this area of law “was to prevent the exception from eating up the rule”. Non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based, and are therefore exceptional, he added.

The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree, the judge said. “In particular, the question cannot depend simply on the degree of risk involved in the relevant activity.”

Lord Sumption said English law had recognised that non-delegable duties could arise in cases with the following characteristics:

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.”

Lord Sumption acknowledged that the courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. “A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.”

However, the judge said he did not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria summarised above.

He gave the following reasons for this view:

1. The criteria themselves were consistent with the long-standing policy of the law to protect those who were both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives. “Schools are employed to educate children, which they can do only if they are allowed authority over them. That authority confers on them a significant degree of control. When the school’s own control is delegated to someone else for the purpose of performing part of the school’s own educational function, it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate.”
2. Parents were required by law to entrust their child to a school. “They do so in reliance on the school’s ability to look after them, and generally have no knowledge of or influence over the arrangements that the school may make to delegate specialised functions, or the basis on which they do so, or the competence of the delegates, all of which are matters about which only the school is in a position to satisfy itself.”
3. This was not an open-ended liability, for there were important limitations on the range of matters for which a school or education authority assumed non-delegable duties. “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.” The judge added that they would not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor would 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.
4. It was important to bear in mind that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable. “The recognition of limited non-delegable duties has become more significant as a result of the growing scale on which the educational and supervisory functions of schools are outsourced, but in a longer historical perspective, it does not significantly increase the potential liability of education authorities.”
5. The responsibilities of fee-paying schools were already non-delegable because they were contractual, and the possibility of contracting out of them was limited by legislation. “In this particular context, there seems to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services are provided by a public authority. A similar point can be made about the technical distinctions that would otherwise arise between privately funded and NHS hospital treatment.”
6. It could fairly be said that the recognition of a non-delegable duty of care owed by schools involved imputing to them a greater responsibility than any which the law presently recognised as being owed by parents. “Parents would not normally incur personal liability for the negligence of (say) a swimming instructor to whom they had handed custody of a child. The appellants’ pleaded allegation that the school stood in loco parentis may not therefore assist their case.” The position of parents was very different to that of schools, the judge said. “Schools provide a service either by contract or pursuant to a statutory obligation, and while LEA schools do not receive fees, their staff and contractors are paid professionals. By comparison, the custody and control which parents exercise over their children is not only gratuitous, but based on an intimate relationship not readily analysable in legal terms. For this reason, the 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.”

Lord Sumption concluded that – on the limited facts pleaded or admitted – Essex, as the education authority, assumed a duty to ensure that the appellant’s swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions.

He said: “The appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. The swimming lessons were an integral part of the school’s teaching function.

“They did not occur on school premises, but they occurred in school hours in a place where the school chose to carry out this part of its functions.”

The judge added: “The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. 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.”

In a supporting judgment Lady Hale suggested that this development of the law avoided the unsatisfactory possibility that one pupil could sue her school for injuries sustained during a negligently conducted swimming lesson where another could not, depending on the precise arrangements made by the school to provide them with swimming lessons.

She added that the boundaries of what a school has undertaken to provide may not always be as clear cut as in the current case, but would have to be worked out on a case by case basis in future.

Lady Hale also backed Lord Sumption’s view that recognising the existence of the non-delegable duty would not cast an unreasonable burden on service providers.

“It is particularly worth remembering that for the most part public authorities would have been vicariously liable to claimants who were harmed in this way until the advent of outsourcing of essential aspects of their functions,” she said.

The Supreme Court set aside the High Court judge’s order striking out the allegation of a non-delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence.

Catherine Leech, a partner at Pannone and solicitor to Annie Woodland, said: “This is a victory for Annie and her family, although as it is an interlocutory hearing, the war is not over.

“It gives a blanket of reassurance for parents of state school pupils nationally, and will lead schools to review procedures about outsourcing.”

Leech insisted that the ruling did not put an unreasonable burden on schools, headteachers or governors.

“If they have robust selection of independent contractors, a contract between them and the school and, crucially, check they are properly insured, the school can protect itself,” she said.

“A pupil has the simple remedy of looking to the school alone if there is a negligent failing during the course of education. The school can in turn be indemnified by the contractor if they are at fault. It is a cleaner and safer situation in which parents and children are protected.”

An Essex County Council spokeswoman said: “The Supreme Court has changed the law so that a public authority now has liability in certain circumstances for the negligence of its independent contractors where children or vulnerable people are involved.

“This overturned the earlier decisions of the High Court and the Court of Appeal.  However, the question of whether Essex County Council is liable in this case remains to be decided and will be heard by the High Court next year.”