Annie Rachel Woodland-v-Essex County Council and Others [2011] EWHC 2631 (QB)

  1. On 17 October 2011 the High Court held for the first time that a school can delegate to an independent contractor its common law duty to take reasonable care for a pupil.
  1. The claimant suffered brain damage when she nearly drowned during a school swimming lesson in July 2000. Essex was responsible for the school but it contracted with an external swimming lesson provider to teach the pupils. The contractor employed the swimming teacher and the life guard who took the lesson. The claim against Essex County Council was that:
  • Essex owed the claimant a common law duty of care to take reasonable steps to ensure that its independent contractors were reasonably competent;
  • Essex was vicariously liable for the actions of the contractor and the lifeguard;
  • even if the school did not employ the swimming teacher or the life guard, Essex remained liable for any negligence on their part because the duty or care it owed to the claimant was non-delegable.
  1. Essex accepted that it owed a duty to ensure that independent contractors were reasonably competent but applied to strike out the other allegations.
  1. Langstaff J dealt shortly with the allegation of vicarious liability (see paragraph 13): the contractor and the lifeguard were not employees of Essex and the general rule that the employer of an independent contractor is not vicariously liable for the contractor’s negligence applied.
  1. The judgment concerns the allegation that the school’s duty is non-delegable. The Judge noted that there was no direct authority on the point. Such English authority as there was, suggested that a school could delegate its duty (see paragraphs 9 and 10, and 60 to 62), but there was Australian High Court authority to the contrary (see paragraph 11). He considered the analogous issue of whether a hospital trust’s duty to its patient was non-delegable and concluded that that question remained undecided (paragraphs 16 to 25). He reviewed Commonwealth and Scottish authorities that had grappled with this issue in order to identify the principles that should be applied (paragraphs 27 to 45).
  1. Langstaff J said that the court should only find that a duty of care was non-delegable if it was appropriate to do so on policy grounds. The court should consider not only whether in some circumstances it might be appropriate to find that a school’s duty to a child was non-delegable, but also whether on the particulars facts of a given case policy dictated that such a finding should be made (paragraph 46). He said that the search through the cases for a coherent set of principles or policy considerations was “elusive” but he observed that, as the imposition of such a duty “goes further than does even vicarious liability in imposing a requirement to answer financially for wrongdoing which is primarily that doing of another”, the policy considerations that justify the imposition of vicarious liability “would all the more emphatically need to be present if liability of a non-delegable form is to extend in a given case beyond it” (paragraph 47).
  1. He therefore identified the policy considerations which had been held to justify the imposition of vicarious liability: (i) “enterprise risk”: he who takes the benefit must bear the burden; (ii) “material increase of the risk”: those responsible for increasing risk should pay if that risk materialises; (iii) “assumption of duty”: the employer should remain liable where it had “entrusted” a duty to an employee; (iv) “deterrence”: employers should be encouraged to exercise the power of control which is inherent in the employment relationship to minimise harm (paragraphs 48 to 52).
  1. Applying those considerations to the facts of the case the Judge said that “material increase of the risk” could not apply: if a specialist is hired to perform a service that requires particular skill and knowledge that is likely to reduce rather than increase the risk arising from that performance. “Deterrence” is a proper basis for imposing vicarious liability because of the element of control, but “there is much less scope, if any, for deterring the principal where he has no such control; and the more removed the actor is from the undertaking which it is sought to hold liable the less this can be a legitimate policy consideration”. Similarly, with “enterprise risk” and “assumption of responsibility”: the greater the separation between the actor and the enterprise, the less the policy justification for imposing liability on the latter (paragraph 53).
  1. Langstaff J therefore struck out the allegation that the school’s duty was non-delegable. Although he held that there may be factual circumstances in which it might be held that a school’s duty to a child was non-delegable, on the assumed facts of this case the allegation was bound to fail:
  • domestic case law is against it;
  • the hospital cases did not established the existence of a non-delegable duty;
  • a restrictive approach to the imposition of non-delegable duties should be taken;
  • it would be a considerable (rather than an incremental) expansion of liability, especially where the events took place away from the school and in premises under the control of others;
  • there were no compelling policy reasons to impose a non-delegable duty.

Comment

  1. The potential ramifications of this case are significant. As Langstaff J observed at the start of the judgment: “The contracting out of work which public bodies hitherto performed using directly employed labour is liable to create situations which may be said to call for fresh legal examination of the traditional understanding of relationships giving rise to liability and the extent of those liabilities.”
  1. Education authorities have always hired independent contractors to perform functions that it is not feasible or financially viable for them to fulfil using employees. It would no doubt come as a surprise to many if a school was liable to compensate a child injured during the provision of those services: see Langstaff J’s example of a school trip to the zoo (paragraph 55). But education authorities now regularly “buy back” services (often from individuals who were previously employees of the authority) which are much more closely connected to the everyday provision of curriculum activities. Previously these services would have been fulfilled by employees and been under the direct control of the school: music lessons, the provision of school lunches, swimming lessons. If the authority remained liable for harm caused during the provision of such services, notwithstanding the discharge of the direct duty it owed to the child, there would be considerable organisational and insurance implications for schools.
  1. The ruling may also have ramifications beyond the realms of education. Claims by children who have been harmed in foster placements or private care homes regularly include allegations that the placing local authority has “entrusted” the care of the child to the foster parent or care home. It is alleged that the local authority cannot divest itself of its duty of care for the child and it remains liable for the damage. Foster carers are not employee of local authorities and those who operate privately care homes are likely to be independent contractors. The conclusions of Langstaff J would seem to be apt to support the argument that a local authority can delegate its duty to children in its care in such circumstances.

The Judge gave the claimant permission to appeal.

Steven Ford QC was instructed by Michelle Campbell of Essex Legal Services

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Steven Ford QC