Woodland v The Swimming Teachers' Association & Ors

A school’s ordinary duty is to take reasonable care for pupils, including reasonable care in selecting competent independent contractors. It does not generally make the school liable for every negligent act of an independent contractor. A non-delegable duty requires careful, incremental development and depends on policy, including assumption of responsibility, control, vulnerability, enterprise risk and deterrence. The duty must have precise content. A school’s possible responsibility for activities integrated into school life and conducted on school premises does not extend, without stronger justification, to a specialist independent contractor providing swimming and lifeguarding services at an external pool. The pleaded non-delegable duty was therefore bound to fail.

The claimant, aged ten, suffered severe hypoxic brain injuries during a school swimming lesson at a local authority pool. The swimming teacher and lifeguard were supplied by an independent contractor and were not employees of Essex County Council, the education authority responsible for the claimant’s school.

The claimant alleged that Essex owed her a non-delegable duty, in addition to duties concerning the selection and competence of the contractor. Essex accepted an ordinary duty of care and a duty concerning contractor selection, but denied liability for the contractor’s negligence and applied to strike out the pleaded non-delegable duty or obtain summary judgment on that issue.

1. Application succeeded. The pleaded claim that Essex owed a non-delegable duty in the circumstances of the swimming lesson was bound to fail. The parties were invited to agree the precise form of order.
2. A non-delegable duty is distinct from vicarious liability and from direct liability for negligent arrangements. The general rule is that an employer of an independent contractor is not liable for the contractor’s torts. The recognised exceptions are generally cases of personal breach by the defendant, rather than true vicarious liability.
3. The question whether a non-delegable duty exists is substantially one of policy. The courts should proceed restrictively and incrementally because the duty imposes liability for the acts of a person whom the defendant neither employs nor directly controls. Relevant considerations may include assumption of responsibility or entrustment, enterprise risk, control, deterrence, vulnerability and dependence.
4. The Australian authorities, particularly Commonwealth v Introvigne, did not establish that every failure of care towards a pupil creates school-authority liability. Their strongest examples concerned organisational or systems failures, such as failure to provide adequate supervision, or relationships closely integrated into the defendant’s undertaking. Carmarthenshire CC v Lewis did not bind the court to recognise a non-delegable duty.
5. The English authorities favoured caution. Brown v Nelson supported the view that a school discharges its duty in relation to external premises by knowing that the premises are apparently safe and that competent and careful persons staff them. Camkin v Bishop also tended against a general non-delegable duty to supervise. The hospital authorities did not justify extending such a duty to this case.
6. The swimming lesson occurred at premises away from the school and under the control of others. The contractor was a specialist whose careful selection could reduce, rather than increase, the relevant risk. There was no sufficiently powerful policy reason to make Essex liable for the lifeguard’s lack of care. The pleaded duty also lacked meaningful and precise content.