Supreme Court to hear case on non-delegable duty of local authority

The Supreme Court will next week (3 July) consider the criteria to be applied in determining the circumstances in which a school’s duty to its pupils under the national curriculum can be delegated.

In Woodland v Essex County Council the appellant is a ten-year-old pupil at Whitmore Junior School in Essex, run by the council as the local education authority.

Essex was obliged under the national curriculum to provide its pupils with swimming lessons, and it organised regular lessons at a local pool owned by Basildon Council.

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

On 5 July 2000, during the course of a swimming lesson, the appellant was involved in a near drowning incident and suffered serious brain damage, as a result of which she is now incapable of looking after her own affairs.

It is alleged on her behalf that Direct Swimming Services, through its employees, was negligent in the conduct of the lesson and that dilatoriness and laxity of supervision caused her injury. Her case is supported by expert evidence.

Insurers of Stotford do not accept that they are liable to indemnify under the policy on the ground that the county council owed a non-delegable duty not merely to take reasonable care of them but to ensure that reasonable care is taken of them by private actors engaged by them to fulfil their duties under the curriculum.

Essex applied to strike out the pleadings in so far as they claimed there to be a “non-delegable” duty.

Mr Justice Langstaff in the High Court granted that application, holding 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 Woodland case will be heard over two days by a panel of five justices, comprising Lady Hale and Lords Clarke, Wilson, Sumption and Toulson.