Care home briefing 132 – Care homes, schools, hospitals, prisons: the problem of ‘non-delegable duty of care’

The recent Supreme Court decision in the case of Woodland v. Swimming Teachers Association and others [2013] UKSC 66 deals with the question of how institutions such as schools, care homes, hospitals and prisons should approach their responsibilities to look after the individuals who are in their care.

In the Woodland case, a young girl suffered serious injury while having a swimming lesson. She claimed damages from the Swimming Teachers Association, the swimming teacher, a lifeguard, the Local Education Authority (“the LEA”) and the Local Authority in which the school was located. The Supreme Court, overruling both the Court of Appeal and the Judge in the High Court on a preliminary point of law, decided that the LEA had a ‘non-delegable’ duty to secure that the girl came to no harm. What does this mean?

The position of the Local Authority was that they could not be held responsible for the injuries suffered by the girl because the swimming lessons had been delegated to an independent contractor and so the Council could not be held ‘vicariously liable’ for the damage suffered.

Generally speaking, the law of negligence is based on fault. If a defendant is not at fault, it should not be held liable. However, the Woodland case has now decided that in certain cases a defendant (in this case the LEA) may be liable, even though not at fault, because it had a non-delegable duty of care. Three reasons were given for this:

  1. There was an antecedent relationship between the claimant and the LEA
  2. There was a particular positive duty on the LEA to protect a particular class of persons (the schoolchildren) against a particular class of risks (the risks of injury)
  3. This duty of care, because of the relationship, was personal to the LEA. Although the work required to perform the duty could be delegated by the LEA (as it was in this case), the duty itself remained with the LEA

The Court looked at various lines of cases in coming to its decision. For example, in Gold v. Essex County Council, [1942] 2 KB 293, a hospital operated by a Local Authority was held liable for the negligence of a radiographer employed by it. This was an orthodox application of the vicarious liability doctrine. In the hospital cases, it seems clear that hospitals are under a direct duty of care to those admitted as patients to the hospital and are liable for the negligent acts of a member of staff which constitutes a breach of that duty even though the member of staff might not himself or herself be in breach of a separate duty of care owed to the claimant.

The Supreme Court acknowledged that it is easy to become confused between circumstances which would give rise to a liability on an institution and those which, at first sight similar, would not give rise to a liability. Thus, in the Court of Appeal case of Myton v. Woods [1980] 79 LGR 28, an LEA was not liable for the negligence of a taxi firm employed by the authority to drive children to and from school. The reason for this was that the school had no statutory duty to transport children, but only to arrange and pay for it.

In other words, the authority did not have a duty to do the very thing which the taxi service was doing i.e. transporting the children. Similarly, in a more recent Court of Appeal case, Farraj v. Kings Healthcare NHS Trust [2010] 1WLR 2139, the Court was correct to dismiss the claim against the hospital which had employed an independent laboratory to analyse the tissue sample for a patient who was not being treated by the hospital and was therefore not in its care.

Lord Sumption stated that, ‘A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.’ In other words, there is a limit and it will be open to any defendant faced with an allegation of this type to argue that the imposition of a non-delegable duty of care would be unfair and/or unjust and/or unreasonable.

Do the owners and operators of schools and care homes need to be worried? The answer is ‘probably not’. It remains the case that such institutions will not be liable for the defaults of independent contractors providing extra curricular activities outside the school or the care home, such as school trips in the holidays. Similarly, they will not be liable for the negligence of bus drivers, or theatres, zoos or museums to which children or residents may be taken by staff in school hours.

Finally, one important and to an extent curious distinction is that between fee paying schools and non-fee paying schools. The responsibilities of fee paying schools are non-delegable because they are contractual. It is curious that the absence of the payment of fees should lead to an opposite result which comparable services are provided by a Public Authority. This point was taken up by Baroness Hale in her concurring judgment. In her interesting hypothetical example of three girls at three different schools, all of them suffering some injury during a swimming lesson, two would be entitled to compensation but one not. The child not entitled to compensation would be the one at a small state funded faith school which contracts with an independent service provider to provide swimming lessons and lifeguards for its pupils. Why would this school not be liable?

The answer is that this child was not at a fee paying school, subject to a contractual obligation; she could not take advantage of the rule which makes an employer vicariously liable for the negligence of its employees; and so could only succeed if the school had an obligation to ensure that care be taken for her safety. This decision means that such a school would be liable.

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Postscript

One unfortunate feature of this particular case, commented on by the judges in the Supreme Court, is that the tragic incident occurred on 5 July 2000 but the claim was not issued until November 2009 and the Supreme Court decision not made until 23 October 2013. The Supreme Court observed that it was unfortunate that the preliminary point was dealt with as it was. The Court pointed out that this way of proceeding was not in the interests of the parties or indeed of the efficient conduct of the litigation.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.