Woodland v Essex CC: the reaction

Supreme Court Main Entrance 03521C press office supplied  146x219The relationship between public bodies and independent contractors has been thrown into sharp relief by yesterday's Supreme Court judgment in the Woodland case. Local Government Lawyer looks at the reaction to the ruling.

See LGL's report: Council loses landmark Supreme Court case over scope of duty to pupils

The reaction

Andrew Cooper, Head of the Public Sector Group at Weightmans

It was previously thought that public bodies would not be liable for the actions of independent contractors. However, this decision is significant for any public body which is responsible for looking after the interests of a child or other vulnerable member of society to whom the public body has accepted responsibility for their care. It covers the acts of independent contractors who have been negligent in the performance of the very function assumed by the public body and delegated by the body to the contractor.

In these circumstances, the public body can be liable for the actions of those to whom they have contracted services even if they may have little or no direct control over their performance. While their Lordships were anxious to restrict the nature of such liability and noted that the courts should be sensitive about imposing financial burdens as public bodies, whether they be local authorities, health providers or prisons, look to outsource more and more of their services, this is a valuable reminder that liability for the actions of contractors may remain with them.

Roy Woollard, Partner at Berrymans Lace Mawer

Lord Sumption found that the "alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform…"

Swimming lessons were "an integral part" of the school's teaching function during school hours. The Supreme Court asserts that the decision does not make schools liable for the negligence of third parties carrying out extra-curricular activities where the school has not assumed responsibility for them.

It should not therefore change the behaviour of schools and local authorities which are obliged to ensure the provision of core curriculum activities such as swimming lessons. Nor, in their opinion, should it influence extra-curricular activities, such as ski-trips or Duke of Edinburgh excursions, which will not be covered by this judgment.

However, Lady Hale comments, rather ominously:
"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."

Whilst agreeing wholeheartedly with this comment, it is the scope and boundaries that this case will set in all areas of "vulnerable groups who attract to themselves a non-delegable duty of care" that will concentrate all our minds in the future.

One critical issue for local authorities will be whether this duty will be owed to children in foster care. Of the five criteria set down, the question will be whether the council has a 'duty to perform' the foster-caring function or if it is just arranging its performance. One for the courts to decide, quite soon, quite possibly.

Kella Bowers, Associate in the Large Loss team at Forbes Solicitors

There are a number of issues raised by this case, not least the question of what situations this case now brings back under the umbrella of a non-delegable duty.

The Supreme Court stated that they felt that it was not satisfactory that one pupil could sue the school for injuries sustained and another could not, depending on the arrangements made by that school. They also recognised that the recent political position, which has required a vast number of activities to be outsourced, may leave claimants vulnerable. One questions therefore whether the Supreme Court’s decision is a reaction to ensure that Government policy does not affect the fair application of the law.

Considering the broad application of the categories [identified by Lord Sumption], local authorities should have regard to the type of claimant that this case may well cover. The categories do not limit the situation to pupils and as such residents in care homes, both adult and child, and indeed prisoners may also attract a similar non-delegable duty.

In reality the defendants in these cases may ultimately end up suing the contractor under breaches of contractual responsibility and therefore be no worse off. However, in cases were the contractor does not have facilities to deal with a claim of significant magnitude a local authority may find themselves paying a hefty price.