When responsibility cannot be contracted out.
When an education authority contracted out swimming lessons to an external contractor, would the authority be liable in principle for alleged default by the contractor resulting in serious injury to a child? ‘No,’ said the High Court. ‘No again,’ said the Court of Appeal.
But in a groundbreaking judgment on 23 October 2013, the Supreme Court (Lord Sumption, Lady Hale and lords Clarke, Wilson and Toulson) saw things differently. The case was Woodland v Essex County Council  UKSC 66, in which the leading judgment was given by Lord Sumption. Lady Hale (agreeing) offered some useful additional observations.
The appellant child in question, aged 10 at the material time, was a pupil at the education authority’s Whitmore Junior School. The authority had engaged an external contractor, Direct Swimming Services, to provide swimming lessons. In the course of a lesson (attended also by a lifeguard) the child got into difficulties. Although resuscitated, she suffered a serious hypoxic brain injury. The appellant alleged that the council owed her a ‘non-delegable duty of care’ and was therefore liable at law for any negligence by Direct Swimming Services. As indicated, both the High Court and Court of Appeal had found no such duty existed in the circumstances.
Nature of non-delegable duty
As Lord Sumption noted (subject to the doctrine of vicarious liability – inapplicable in the circumstances – where, for example, an employer is liable for the torts of an employee committed in the course of his or her employment) the law of negligence is generally fault-based, with a defendant incurring personal liability only for his or her negligent acts or omissions. But the ‘expression “non-delegable duty” has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others’.
There are two broad categories of non-delegable duty. The first is where the defendant employs an independent contractor to perform a function which is either inherently hazardous or liable to become so in the course of the work. However, it was the second which was directly in point. This comprises cases having the following three characteristics, namely where the duty: (i) arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant; (ii) is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply to refrain from acting in a way that foreseeably causes injury; and (iii) is one by virtue of that relationship personal to the defendant.
His lordship undertook a careful analysis of the development of relevant case law (including key Australian decisions), noting its roots in the law of nuisance and its implied presence in the leading case of Rylands v Fletcher  LR 1 Ex 265 (duty of defendant to prevent escape of water from reservoir due to the operations of an independent contractor was non-delegable). He said that both ‘principle and authority suggest that the relevant factors are 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, and the delegation of that custody to another person’.
Applicability of non-delegable duty
As Lord Sumption indicated, the main problem in this area ‘is to prevent the exception from eating up the rule’. So it will have the following defining features:
(i) The claimant is a patient, child, prisoner, care home resident or otherwise especially vulnerable or dependent on the defendant’s protection against risk of injury.
(ii) A separate antecedent relationship between claimant and defendant with an element of control placing the claimant under the charge of the defendant and where a positive duty to protect the claimant from harm has been assumed.
(iii) The claimant has no control over how the defendant performs its obligations.
(iv) The defendant delegated to a third party some integral part of the duty where the third party is exercising for that purpose the defendant’s care of the claimant with the attendant control.
(v) The third party has been negligent in the performance of the relevant function assumed by the defendant and delegated to the third party.
The essential element, indicated Lord Sumption, ‘is not control of the environment in which the claimant is injured, but control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility’.
Fair, just and reasonable
However, since the ‘courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services’, schools should be subject to a non-delegable duty of care ‘only so far as it would be fair, just and reasonable to do so’. But, in the court’s view, the existence of such a duty would not cast an unreasonable burden for (among other things) when the school’s own control is delegated to another in relation to part of its educational function ‘it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate’.
Furthermore, the liability is not open-ended as there are important limitations on the range of matters for which a school or education authority assumes non-delegable duties. So, there will be no liability where the authority or school’s own duty is not to perform the relevant duty but only to arrange for its performance, for example school trips, or where no control has been delegated, for example bus drivers to school outings.
But schools (because their service is provided either by contract or statutory obligation) have a greater responsibility than that of parents who have with the child ‘an intimate relationship not readily analysable in legal terms’.
In the circumstances, since the alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractor, if the contractor were negligent in performing those functions and the child is consequently injured, the educational authority is in breach of duty. The relevant duty was therefore non-delegable.
Lady Hale, agreeing, offered some additional observations. Since the common law is a dynamic instrument, developing and adapting to meet new situations as they arise, the danger of this strength is ‘unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case’. Caution is therefore necessary.
Although Woodland is likely to increase local authority anxiety levels in relation to relevant contracted-out services, as Lord Sumption indicated, it is worth bearing in mind that ‘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’.
Therefore, ‘in a longer historical perspective’ the situation ‘does not significantly increase the potential liability of education authorities’. Nevertheless, authorities will now wish to ensure they have robust indemnities in place in all their arrangements with external contractors.
Dr Nicholas Dobson is a consultant at Freeth Cartwright