WOODLAND V ESSEX COUNTY COUNCIL [2013] EWHC 1711 (QB)
Surrey Personal Injury and Child abuse website – Duty of care
FACTS:-
The Claimant suffered severe hypoxic injuries whilst swimming in a pool run by the Fifth Defendant, Basildon Council. There was a life guard (the Third Defendant) and a swimming teacher (the Second Defendant), who was in turn a member of the Swimming Teachers’ Association (the First Defendant). The Second Defendant was an independent contractor to the Claimant’s school, which was run by the Fourth Defendant, Essex County Council.
The Claimant asserted that Essex County Council (“Essex”) owed her a “non delegable duty of care in the capacity loco parentis” and that Essex was also vicariously liable for the negligence of both the Second Defendant, the swimming teacher and the lifeguard, the Third Defendant. This was denied by Essex although they admitted that they owed a general duty of care to the pupil. At first instance, the claim failed. The Claimant appealed but her appeal was dismissed. She now petitioned the UK Supreme Court.
JUDGEMENT:-
Lord Sumption (with whom Lord Clarke, Lord Wilson and Lord Toulson agreed) went over the facts of the case. The issue on the present appeal arose out of an allegation in the Claimant’s pleadings that the local authority owed her a "non-delegable duty of care", with the result that it was liable at law for any negligence on the part of the swimming teacher and the lifeguard. Lord Sumption commented that the pleadings were unsatisfactory. There were no findings of fact in the courts below and almost everything was disputed. Consequently a decision by the Supreme Court would not be decisive of the litigation either way, because there were other bases of claim independent of it. Regardless of the outcome of this appeal it would now have to go back to the High Court to find the relevant facts.
Lord Sumption said that in principle, liability in tort depended upon proof of a personal breach of duty. To that principle, there was at common law only one true exception, namely vicarious liability. Where a Defendant was vicariously liable for the tort of another, he was held liable as a matter of public policy for the tort of the other. He referred to the following cases
However vicarious liability did not extend to the negligence of those who were truly independent contractors. The question is what was the scope of the local authority's duty to pupils in its care? A common law duty of care did not usually demand compliance with a specific obligation. It was only when an act was undertaken by a party that a general duty arose to perform the act with reasonable care. The expression "non-delegable duty" had become the conventional way of describing those cases in which the ordinary principle was displaced and the duty extended beyond being careful, to procuring the careful performance of work delegated to others.
Lord Sumption referred to the following cases:-
In these cases, the principle was applied more broadly to "extra-hazardous" operations generally and might be ready for re-examination. However teaching children to swim was not on any view an "extra-hazardous" activity.
However there was a second category of non-delegable duty, comprising cases where the common law imposed a duty upon the Defendant which had three critical characteristics.
The work required to perform such a duty might well be delegable, and usually was. But the duty itself remains the Defendant's. Lord Sumption referred to the following cases:-
There were a number of situations where by virtue of some special relationship the Defendant was held to assume positive duties.
Both principle and authority suggested that the relevant factors were:-
Lord Sumption turned to the employment cases. In Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the House of Lords not only held that the employer had a duty to provide a safe system of work, but also that it was (in the modern terminology) non-delegable. There were then the hospital cases.
Lord Sumption turned to the Australian case-law.
Lord Sumption considered in what circumstances a non-delegable duty would arise.The main problem about this area of the law was to prevent the exception from eating up the rule. Non-delegable duties of care were inconsistent with the fault-based principles on which the law of negligence was based, and were therefore exceptional. The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree. In particular, the question could depend simply on the degree of risk involved in the relevant activity. In Lord Sumption’s view, the time had come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and the Australian cases were broadly correct in their analysis of the factors that had given rise to non-delegable duties of care.
The features were as follows:-
(1) The Claimant was a patient or a child, or for some other reason was especially vulnerable or dependent on the protection of the Defendant against the risk of injury. Other examples were likely to be prisoners and residents in care homes.
(2) There was an antecedent relationship between the Claimant and the Defendant, independent of the negligent act or omission itself, (i) which placed the Claimant in the actual custody, charge or care of the Defendant, and (ii) from which it was 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 was characteristic of such relationships that they involved an element of control over the claimant, which varied in intensity from one situation to another, but was clearly very substantial in the case of schoolchildren.
(3) The Claimant had no control over how the Defendant chose to perform those obligations, i.e. whether personally or through employees or through third parties.
(4) The Defendant had delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the claimant; and the third party was 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 went with it.
(5) The third party had 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.
The essential element in Lord Sumption’s view was not control of the environment in which the Claimant was injured, but control over the Claimant for the purpose of performing a function for which the Defendant had assumed responsibility. Consequently the Court of Appeal was right in Farraj v King's Healthcare NHS Trust [2010] 1 WLR 2139 to dismiss a claim against a hospital which had employed an independent laboratory to analyse a tissue sample for a patient who was not being treated by the hospital and was therefore not in its custody or care.
The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. But no unreasonable burden would be cast on them by recognising the existence of a non-delegable duty. Lord Sumption’s reasons were as follows:-
(1) The criteria themselves were consistent with the long-standing policy of the law, apparent notably in the employment cases, to protect those who are 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.
(2) Parents were required by law to entrust their child to a school. They did so in reliance on the school's ability to look after them, and generally had no knowledge of or influence over the arrangements that the school might make to delegate specialised functions.
(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 were liable for the negligence of independent contractors only if and so far as the latter were performing functions which the school had assumed for itself a duty to perform, generally in school hours and on school premises. They would not be liable for the negligence of independent contractors where on analysis their own duty was not to perform the relevant function but only to arrange for its performance.
(4) The recognition of limited non-delegable duties had become more significant as a result of the growing scale on which the educational and supervisory functions of schools were outsourced, but in a longer historical perspective, it did 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 seemed to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services were provided by a public authority.
(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 recognises as being owed by parents. The position of parents was very different to that of schools. Schools provided a service either by contract or pursuant to a statutory obligation, and while LEA schools do not receive fees, their staff and contractors were paid professionals. By comparison, the custody and control which parents exercised over their children was not only gratuitous, but based on an intimate relationship not readily analysable in legal terms. For this reason, the common law had always been extremely cautious about recognising legally enforceable duties owed by parents on the same basis as those owed by institutional carers: see Surtees v Kingston-on-Thames Borough Council [1992] PIQR 101, 121 (Beldam LJ); Barrett v Enfield London Borough Council [2001] 2 AC 550, 588 (Lord Hutton).
Lord Sumption said that the local authority in this case assumed a duty to ensure that the Claimant’s swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions. 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 was in breach of duty. He would allow the appeal.
Lady Hale agreed. She also agreed that it was not particularly helpful to plead that the school was in loco parentis. The school clearly did owe its pupils at least the duty of care which a reasonable parent owed to her children. But it might owe them more than that. Children rarely sued their parents for the harm that they suffered at their parents' hands save where that harm was covered by an insurance policy. But that was not because the parents did not owe them a duty of care. Rather it was because any damages recovered would normally reduce the resources available to cater for the needs of the child and her family. The courts were also anxious not to impose an impossibly high standard of care in an ordinary domestic setting, as was common ground between the judges in Surtees v Kingston-upon-Thames Borough Council [1992] PIQR 101. Neither of those factors applied to institutional carers including schools.
Surrey Personal Injury and Child abuse website – Duty of care
FACTS:-
The Claimant suffered severe hypoxic injuries whilst swimming in a pool run by the Fifth Defendant, Basildon Council. There was a life guard (the Third Defendant) and a swimming teacher (the Second Defendant), who was in turn a member of the Swimming Teachers’ Association (the First Defendant). The Second Defendant was an independent contractor to the Claimant’s school, which was run by the Fourth Defendant, Essex County Council.
The Claimant asserted that Essex County Council (“Essex”) owed her a “non delegable duty of care in the capacity loco parentis” and that Essex was also vicariously liable for the negligence of both the Second Defendant, the swimming teacher and the lifeguard, the Third Defendant. This was denied by Essex although they admitted that they owed a general duty of care to the pupil. At first instance, the claim failed. The Claimant appealed but her appeal was dismissed. She now petitioned the UK Supreme Court.
JUDGEMENT:-
Lord Sumption (with whom Lord Clarke, Lord Wilson and Lord Toulson agreed) went over the facts of the case. The issue on the present appeal arose out of an allegation in the Claimant’s pleadings that the local authority owed her a "non-delegable duty of care", with the result that it was liable at law for any negligence on the part of the swimming teacher and the lifeguard. Lord Sumption commented that the pleadings were unsatisfactory. There were no findings of fact in the courts below and almost everything was disputed. Consequently a decision by the Supreme Court would not be decisive of the litigation either way, because there were other bases of claim independent of it. Regardless of the outcome of this appeal it would now have to go back to the High Court to find the relevant facts.
Lord Sumption said that in principle, liability in tort depended upon proof of a personal breach of duty. To that principle, there was at common law only one true exception, namely vicarious liability. Where a Defendant was vicariously liable for the tort of another, he was held liable as a matter of public policy for the tort of the other. He referred to the following cases
- Majrowski v Guy's and St. Thomas's NHS Hospital Trust [2005] QB 848.
- Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1
However vicarious liability did not extend to the negligence of those who were truly independent contractors. The question is what was the scope of the local authority's duty to pupils in its care? A common law duty of care did not usually demand compliance with a specific obligation. It was only when an act was undertaken by a party that a general duty arose to perform the act with reasonable care. The expression "non-delegable duty" had become the conventional way of describing those cases in which the ordinary principle was displaced and the duty extended beyond being careful, to procuring the careful performance of work delegated to others.
Lord Sumption referred to the following cases:-
- Pickard v Smith (1861) 10 CB (NS) 470, [1861] EngR 71
- (Penny v Wimbledon Urban District Council [1898] 2 QB 212
- Holliday v National Telephone Company [1899] 2 QB 392
- Honeywill and Stein Ltd v Larkin Brothers (London's Commercial Photographers) Ltd [1934] 1 KB 191
In these cases, the principle was applied more broadly to "extra-hazardous" operations generally and might be ready for re-examination. However teaching children to swim was not on any view an "extra-hazardous" activity.
However there was a second category of non-delegable duty, comprising cases where the common law imposed a duty upon the Defendant which had three critical characteristics.
- First, it arose not from the negligent character of the act itself but because of an antecedent relationship between the Defendant and the Claimant.
- Second, the duty was a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably caused injury.
- Third, the duty was by virtue of that relationship personal to the Defendant.
The work required to perform such a duty might well be delegable, and usually was. But the duty itself remains the Defendant's. Lord Sumption referred to the following cases:-
- Photo Production Ltd v Securicor Transport Ltd [1980] AC 827,
- Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716
- Rylands v Fletcher (1866) LR 1 Ex 265
- Dalton v Henry Angus & Co (1881) 6 App Cas 740
- Hughes v Percival (1883) 8 App Cas 443
There were a number of situations where by virtue of some special relationship the Defendant was held to assume positive duties.
- Henderson v Merrett Syndicates Ltd [1995] 2 AC 145
- Dorset Yacht Company v Home Office [1970] AC 1004
- White v Jones [1995] 2 AC 207, 275
Both principle and authority suggested that the relevant factors were:-
- The vulnerability of the Claimant
- The existence of a relationship between the Claimant and the Defendant by virtue of which the latter has a degree of protective custody over him
- The delegation of that custody to another person
Lord Sumption turned to the employment cases. In Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the House of Lords not only held that the employer had a duty to provide a safe system of work, but also that it was (in the modern terminology) non-delegable. There were then the hospital cases.
- Gold v Essex County Council [1942] 2 KB 293
- Cassidy v Ministry of Health [1951] 2 KB 343
Lord Sumption turned to the Australian case-law.
- Commonwealth v Introvigne (1982) 150 CLR 258
- Kondis v State Transport Authority (1984) 154 CLR 672.
- Burnie Port Authority v General Jones Pty (1994) 179 CLR 520
- New South Wales v Lepore (2003) 212 CLR 511
Lord Sumption considered in what circumstances a non-delegable duty would arise.The main problem about this area of the law was to prevent the exception from eating up the rule. Non-delegable duties of care were inconsistent with the fault-based principles on which the law of negligence was based, and were therefore exceptional. The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree. In particular, the question could depend simply on the degree of risk involved in the relevant activity. In Lord Sumption’s view, the time had come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and the Australian cases were broadly correct in their analysis of the factors that had given rise to non-delegable duties of care.
The features were as follows:-
(1) The Claimant was a patient or a child, or for some other reason was especially vulnerable or dependent on the protection of the Defendant against the risk of injury. Other examples were likely to be prisoners and residents in care homes.
(2) There was an antecedent relationship between the Claimant and the Defendant, independent of the negligent act or omission itself, (i) which placed the Claimant in the actual custody, charge or care of the Defendant, and (ii) from which it was 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 was characteristic of such relationships that they involved an element of control over the claimant, which varied in intensity from one situation to another, but was clearly very substantial in the case of schoolchildren.
(3) The Claimant had no control over how the Defendant chose to perform those obligations, i.e. whether personally or through employees or through third parties.
(4) The Defendant had delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the claimant; and the third party was 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 went with it.
(5) The third party had 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.
The essential element in Lord Sumption’s view was not control of the environment in which the Claimant was injured, but control over the Claimant for the purpose of performing a function for which the Defendant had assumed responsibility. Consequently the Court of Appeal was right in Farraj v King's Healthcare NHS Trust [2010] 1 WLR 2139 to dismiss a claim against a hospital which had employed an independent laboratory to analyse a tissue sample for a patient who was not being treated by the hospital and was therefore not in its custody or care.
The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. But no unreasonable burden would be cast on them by recognising the existence of a non-delegable duty. Lord Sumption’s reasons were as follows:-
(1) The criteria themselves were consistent with the long-standing policy of the law, apparent notably in the employment cases, to protect those who are 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.
(2) Parents were required by law to entrust their child to a school. They did so in reliance on the school's ability to look after them, and generally had no knowledge of or influence over the arrangements that the school might make to delegate specialised functions.
(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 were liable for the negligence of independent contractors only if and so far as the latter were performing functions which the school had assumed for itself a duty to perform, generally in school hours and on school premises. They would not be liable for the negligence of independent contractors where on analysis their own duty was not to perform the relevant function but only to arrange for its performance.
(4) The recognition of limited non-delegable duties had become more significant as a result of the growing scale on which the educational and supervisory functions of schools were outsourced, but in a longer historical perspective, it did 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 seemed to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services were provided by a public authority.
(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 recognises as being owed by parents. The position of parents was very different to that of schools. Schools provided a service either by contract or pursuant to a statutory obligation, and while LEA schools do not receive fees, their staff and contractors were paid professionals. By comparison, the custody and control which parents exercised over their children was not only gratuitous, but based on an intimate relationship not readily analysable in legal terms. For this reason, the common law had always been extremely cautious about recognising legally enforceable duties owed by parents on the same basis as those owed by institutional carers: see Surtees v Kingston-on-Thames Borough Council [1992] PIQR 101, 121 (Beldam LJ); Barrett v Enfield London Borough Council [2001] 2 AC 550, 588 (Lord Hutton).
Lord Sumption said that the local authority in this case assumed a duty to ensure that the Claimant’s swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions. 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 was in breach of duty. He would allow the appeal.
Lady Hale agreed. She also agreed that it was not particularly helpful to plead that the school was in loco parentis. The school clearly did owe its pupils at least the duty of care which a reasonable parent owed to her children. But it might owe them more than that. Children rarely sued their parents for the harm that they suffered at their parents' hands save where that harm was covered by an insurance policy. But that was not because the parents did not owe them a duty of care. Rather it was because any damages recovered would normally reduce the resources available to cater for the needs of the child and her family. The courts were also anxious not to impose an impossibly high standard of care in an ordinary domestic setting, as was common ground between the judges in Surtees v Kingston-upon-Thames Borough Council [1992] PIQR 101. Neither of those factors applied to institutional carers including schools.