Does a School Owe its Pupils a Non-Delegable Duty of Care? - Emily Gordon Walker, 12 King’s Bench Walk

21/12/11. Annie R. Woodland (by her litigation friend) v (1) The Swimming Teachers’ Association; (2) Beryl Stotford: (3) Deborah Maxwell; (4) Essex County Council and (5) Basildon District Council. [2011] EWHC 2631 (QB)

Does a school owe its pupils a non-delegable duty of care?  This was the preliminary issue to be determined between the claimant and Essex County Council (“Essex”).

The case explores the relationship between local authorities and the bodies that they contract with to perform services for those within their control. Langstaff J undertakes a legal examination of the traditional understanding of relationships giving rise to liability and the extent of those liabilities.  He examines the distinction between primary and vicarious liability and considers whether an extension of the common law is justified on policy grounds.

The claimant was seriously injured during the course of a swimming lesson on 5 July 2000, when she was 10 years old.  The claimant suffered severe hypoxic brain injuries and claimed substantial damages from Essex, the education authority responsible for her school.

The swimming lesson was attended by pupils of the claimant’s school during the course of the school day.  However, neither the facilities nor the supervision of the pupils were controlled or conducted by Essex.  The swimming pool was run by the Fifth Defendant.  The lesson was supervised by a swimming teacher and a life guard (the Third Defendant) who were employees of the Second Defendant, an independent contractor to Essex.

The claimant contended that Essex owed her “a non-delegable duty of care in the capacity of loco parentis.” The concepts of duty and negligence are not static, but responsive to societal expectations.  Reliance was placed upon common law Commonwealth authority (Commonwealth v Introvigne [1982] HCA 40).

Essex accepted that a common law duty of care was owed to the clamant, which included obligations both to take such care as would be exercised by a reasonably careful parent and to take reasonable steps to ensure that their independent contractors were reasonably competent. However, it denied that the duty was non-delegable or that it should be vicariously liable for any negligence by the life guard.

The judgment contains a detailed analysis of the case law.  The issue in this case has been explored most frequently, in this jurisdiction, in the context of hospital and patient.  However, Langstaff J concludes that the position of a pupil in a school is distinct from the patient in hospital.  The vulnerability of the latter through illness causes the hospital to assume responsibility for his treatment.  If school pupils are vulnerable, that is because they are young.  The school does not assume responsibility for the health of its pupils as a matter of primary responsibility, but as secondary to its principal responsibility which is that of educating the child.

Langstaff J held that the claim that Essex owed a non-delegable duty to the claimant was bound to fail.  It was neither supported by the case nor on policy grounds. He summarises his reasoning at paragraph 72:  

i) Case-law in this jurisdiction is against it;

ii) A restrictive approach should be taken to the circumstances in which a non-delegable duty may apply;

iii) It would be a considerable expansion of liability;

iv) No case has yet held the duty to exist even in the case of a hospital (and two recent appeal authorities have denied it), except one county court authority which was regarded as wrong by the Court of Appeal in a subsequent case, yet the whole purpose of hospitals is to ensure the health and well-being of their patients;

xiii) There is less cause for a non-delegable duty to exist where health and safety of pupils though important is not the whole purpose of the undertaking;

xiii) There is no special reason in policy to hold there should be such a duty here (such as the desire to avoid the inequities of the doctrine of common employment, where employment is concerned, or the very special need for
protection where inherently dangerous activities are pursued) nor those which appealed to Lady Paton in AM v. Hendron & Ors [2005] Scot CS CSOH_121 (13 September 2005);

vii)  Even if – which for these purposes I am prepared to assume – a school may be liable on a non-delegable basis for the actions of non-employee contractors providing educational services directly to children within its premises, this would in itself be an extension of the present common law. It would be a double extension beyond that for those who are not teaching (but lifeguarding) and in premises under the regular control of others, well away from the school itself, to be held liable.

viii)  By the same token, if an incremental approach is to be taken to recognising new duties, this is beyond a reasonable step further than any recognised case, and fairness and justice do not compel it.

ix)  It is difficult to identify a consistent policy which might determine when a duty should be non-delegable, but it is likely to be related closely to those which underlie vicarious liability since that is liability which an undertaking
may owe for the wrongs of others, albeit less universally so. More powerful arguments, or similar arguments but of greater strength and applicability, would seem necessary if the undertaking were to held liable not just vicariously but also for the wrongful actions of those it does not employ and cannot directly control. Yet the position of the contractor here is that of a specialist, as a trained life-guard, thus reducing the risk below that posed by
in-house less trained staff, with none of the same strength of argument as to enterprise risk or deterrence;

x)  Other reasons of policy tend against non-delegability. The injury was suffered in premises away from the school, not under its direct control. There is good reason to hold a truly independent contractor liable only as such, and no reason for his pockets to be regarded as so shallow (like those of the employed workman) that another should be the first recourse for compensation for his torts;

xi)  There is no reason to assume that a duty to take the same degree of care as a parent would be broken by employing a life-guard for swimming lessons in a relatively lightly populated pool, or that a parent would not delegate his or her responsibilities for the health and safety of a child whilst swimming to such a person;

xii)  The duty postulated by the claim here has no meaningful content (as drafted). A non-delegable duty should be capable of precise and careful formulation, precisely because of the width of its scope. If it were amended, to provide that the content is “to ensure reasonable care is taken by a life-guard to ensure children are kept reasonably free of injury while swimming at a local authority pool” this is a liability which in effect can only be discharged either by direct involvement with the (independent) employer of the lifeguard when laying down the system to which the guard is to work, to organise the supervision properly and adequately, or by suffering financial liability if the lifeguard fails to apply that supervision to the class in question. None is satisfactory in itself – the policy preference must be for the firm specialising in swimming services to lay down the system, and for the liability of the school to depend on whether that firm has been carefully selected for that task;

xiii)  Lady Paton in Hendron regarded it as important in deciding whether non delegable duties might apply to know that neither vicarious nor direct liability would. They would then be the only route to redress in a deserving case. That is not, however, the case here.

Emily Gordon Walker
12 King’s Bench Walk

Image ©iStockphoto.com/ewg3D