School swimming lessons

October 26th, 2013

Earlier this week the Supreme Court gave judgment in Woodland v Essex County Council [2013] UKSC 66.  The case is important because it extends the circumstances in which schools and local authorities will be liable for injuries to the children in their care that are caused by negligence [28].

Factual background and proceedings below

The Claimant, Annie Wooland, was a pupil at Whitmore Junior School, for which Essex County Council was responsible.  On 5 July 2000, when she was ten years old, she participated in a swimming lesson in which she nearly drowned.  She was resuscitated, but suffered a serious brain injury.

The swimming lessons were required by the national curriculum, and had to take place during school hours.  The school had arranged for the lessons to be provided by an independent contractor, Direct Swimming Services, and they took place outside of the school premises.  None of the staff of Direct Swimming Services were employed by Essex County Council.

The Claimant’s allegation was that the staff of Direct Swimming Services negligently failed to notice that the Claimant was in difficulties in the water, and that this was the  cause of her injury.

Essex County County were alleged to be liable for this negligence because they owed the Claimant a “non-delegable duty of care”.  The Council were successful in striking out this allegation in the High Court and the Court of Appeal (Laws LJ dissenting), but the Claimant succeeded in her appeal before the Supreme Court.  Lord Sumption gave the lead judgment, and Lady Hale gave a supporting judgment.

The non-delegable duty of care

The normal duty of care owed by schools to pupils is only to take reasonable care in the performance of the functions entrusted to the school, and only to the extent that the school performs those functions itself or through its employees.

The ‘non-delegable duty of care’, however, is a duty to procure that reasonable care is taken in the performance of the school’s functions whoever the school arranges to perform those functions.  In other words, as Lord Sumption sets out at [7], this type of “duty is 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 causes injury”.  Such a duty is a departure from the normal fault-based principles of the law of negligence, and so must arise only exceptionally [22].  The duty arises from the pre-existing relationship between the defendant and claimant [7].

The circumstances in which the duty will arise

Lord Sumption at [23] set out five defining features of the circumstances in which a non-delegable duty of care has already been found by the courts (putting aside certain aberrant classes of case):

(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 emphasised at [24] that the ‘essential element’ of the circumstances in which such a duty will arise is “control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility”.  He also stated that it would have to be fair, just and reasonable for the duty to be imposed [25].

The reasons for the Supreme Court’s decision

In addition to the reasons embodied by the principles set out by Lord Sumption above, the Supreme Court was clearly moved by the argument that it is unfair that a child who suffered injury due to negligence may, if the child attends an independent school, sue in contract; but if the child attends a state school, may only sue in tort if the tortfeasor is employed by the school [25, 30].  This was especially true given that more and more functions of state schools are now carried out by outsourced contractors [25(4)].

Limitations on the circumstances in which the duty will arise

Lord Sumption was at pains to emphasise that Woodlands does not create an open-ended liability.  It does not apply to extra-curricula activities outside school hours, or to the negligence of individuals who have not been granted control over the children (e.g. other adults on trips such as bus drivers or museum staff, in circumstances where the school staff retain control over the children) [25(3)].  For example, secondary schools are not required by the national curriculum to organise swimming lessons.  Does that mean that a non-delegable duty of care does not arise?  Or does the matter turn on whether the lessons take place during school hours or on the school site?  Some of those distinctions may prove to be rather difficult to justify, and guidance from the lower courts will no doubt be forthcoming.  In the Court of Appeal, Laws LJ in his dissenting judgment at [30] referred to the criterion being a “service which is part of the institution’s mainstream function of education”, but again, it is unclear whether the provision of swimming lessons at a secondary school would fall within that criterion or not.

Practical steps to mitigate against possible liabilities

It appears doubtful that a school will be able to acquire insurance against liability for breaches of a non-delegable duty of care committed by independent contractors (or, at any rate, for an affordable premium).

Schools should therefore consider including contractual clauses to the effect that the independent contractor indemnifies the school in respect of liabilities under the school’s non-delegable duty of care, where those liabilities arise from the negligence of the independent contractor.  An indemnity may not, however, be much help in the face of large claims such as those of Ms Woodlands (reported to be worth £3m), if the independent contractor is an individual.

It may therefore be the interests of schools to contract with much larger organisations who would be able to meet such a liability should it arise, or instead for school to ensure that independent contractors are insured to a sufficient degree such that such a large liability could be met.  This may be particularly necessary for small educational organisations such as free schools.

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