Woodland v Essex County Council

A non-delegable duty is a personal duty to ensure that reasonable care is taken. It is distinct from vicarious liability and represents an exceptional departure from the ordinary independent-contractor rule. For schools and hospitals, the relevant relationship requires the institution to undertake the care, supervision and control of a vulnerable person. On the pleaded facts, an education authority did not owe such a duty for an off-site swimming lesson conducted by an independent contractor where school staff neither controlled nor supervised the activity. Extending the duty further was a matter for the Supreme Court.

The claimant, a ten-year-old pupil, suffered severe hypoxic brain injury during a swimming lesson at a public pool. The lesson was organised and supervised by independent contractors engaged by Essex County Council. The claim alleged direct negligence, vicarious liability and a non-delegable duty to ensure that reasonable care was taken.

Langstaff J struck out the vicarious-liability and non-delegable-duty allegations. The direct-negligence claim concerning the selection of a competent contractor remained. This appeal concerned only the non-delegable duty and raised whether a school authority could be liable for negligence by independent contractors providing an off-site educational service.

1. Majority outcome. Tomlinson LJ and Kitchin LJ dismissed the appeal. The authority was not liable on the pleaded facts for a non-delegable duty owed in respect of the swimming lesson.
2. Nature of the duty. A non-delegable duty is a personal duty to ensure that reasonable care is taken. It differs from vicarious liability and from the ordinary duty which may be discharged by engaging an apparently competent independent contractor. Any extension of the recognised categories required a compelling fair, just and reasonable justification. The reasoning in Farraj v King’s Healthcare NHS Trust [2010] 1 WLR 2139 and A (A Child) v Ministry of Defence [2005] QB 183 supported caution.
3. Special relationship. The essential relationship identified in the school and hospital authorities was one in which the institution undertook the care, supervision and control of a vulnerable person. The authorities concerning schools, including Commonwealth v Introvigne (1982) 150 CLR 258, did not justify extending the duty to an activity conducted away from school premises without school control or supervision.
4. Application. The authority had not undertaken to teach the claimant to swim and had not undertaken her care, supervision or control during the lesson. The pool and the swimming personnel were supplied by others. The fact that swimming formed part of the national curriculum did not, on the pleaded facts, create the required relationship. It was not fair, just or reasonable to impose the proposed duty.
5. Procedure. Tomlinson LJ considered that the judge could have left the issue to trial under CPR 3.4(2)(a) and 24.2, particularly because factual issues remained and the suggested saving in time and cost was likely illusory. Nevertheless, the court decided the substantive issue because of the course of the litigation and held that any such development of English law was for the Supreme Court.
6. Dissent. Laws LJ would have allowed the appeal. He proposed that a school or hospital should owe a non-delegable duty where the claimant was generally in its care and was receiving a service forming part of the institution’s mainstream educational or healthcare function. He considered both elements arguably satisfied. Kitchin LJ agreed with Tomlinson LJ.

1. Court of Appeal (Civil Division) [2012] EWCA Civ 239: by majority, dismissed the appeal and upheld the striking out of the non-delegable-duty allegation. Laws LJ dissented.
2. Queen’s Bench Division: Langstaff J, on 17 October 2011, held that the pleaded non-delegable duty was bound to fail and struck out that allegation. The vicarious-liability allegation had also been struck out and was not appealed; the direct-negligence allegations remained for trial.