Woodland v Essex County Council

A school or other institutional carer may owe an exceptional, personal duty to ensure that reasonable care is taken by an independent contractor. The duty may arise where a vulnerable claimant is in the defendant’s custody or care, lacks control over how the defendant performs its obligations, and the defendant delegates an integral part of its protective function together with control over the claimant.

Liability extends only to negligence in performing the very function assumed and delegated. It does not ordinarily cover collateral negligence, functions which the defendant merely arranged, or persons to whom it delegated no custody or control. Control of the place where injury occurs is not essential. Applying those principles, an education authority may be liable for negligent teaching and supervision during curricular swimming lessons conducted by independent contractors.

A ten-year-old pupil suffered severe hypoxic brain injury during a swimming lesson forming part of her school’s curriculum. The lesson took place in school hours at a public pool and was taught and supervised by personnel supplied through an independent contractor rather than employed by the respondent education authority.

The pupil pleaded that the authority owed her a non-delegable duty of care and was personally liable if the contractors had negligently taught or supervised her. Langstaff J struck out that allegation. The Court of Appeal, by a majority, affirmed the order in [2012] EWCA Civ 239; [2013] 3 WLR 853.

The issue before the Supreme Court was whether the authority’s duty was confined to taking reasonable care in functions performed through its own employees, or extended to ensuring reasonable care in the performance of delegated educational and supervisory functions.

1. Appeal allowed unanimously. Lord Sumption gave the leading judgment, with which Lord Clarke, Lord Wilson and Lord Toulson agreed. Lady Hale delivered additional reasons, also supported by Lord Clarke, Lord Wilson and Lord Toulson. The order striking out the allegation of a non-delegable duty was set aside.
2. A non-delegable duty is exceptional because negligence is ordinarily fault-based and a defendant is generally not personally liable for the acts of an independent contractor. In the relevant category, however, an antecedent relationship imposes a positive and personal duty to protect a class of vulnerable persons from a class of risks. The defendant may delegate performance, but remains legally responsible for its careful performance.
3. Lord Sumption identified five defining features. The claimant is especially vulnerable or dependent. An antecedent relationship places the claimant in the defendant’s custody, charge or care and supports an assumed positive duty of protection. The claimant has no control over how the obligation is performed. The defendant delegates an integral part of that duty together with custody or control. The contractor is negligent in performing the very function assumed and delegated, rather than in a collateral respect.
4. Control over the environment where injury occurs is not essential. What matters is control over the claimant for the purpose of performing a function for which the defendant assumed responsibility. Nor is liability open-ended. It ordinarily excludes functions which the defendant merely arranged, extra-curricular activities outside school hours, collateral defaults, and negligence by persons to whom no control over the child was entrusted.
5. On the pleaded facts, the authority assumed a duty to ensure that the pupil’s curricular swimming lessons were carefully taught and supervised. The lessons were an integral part of the school’s educational function, occurred in school hours at a place selected by the school, and involved delegation of both teaching and supervisory control. If the contractors negligently performed those functions and thereby caused injury, the authority was personally in breach.
6. Lady Hale agreed that this principled and limited development avoided arbitrary differences between pupils according to whether a school employed staff or outsourced an essential function. The boundaries of an institution’s undertaking remain fact-sensitive. Pleading that a school acts in loco parentis adds little, because professional institutional carers may owe duties exceeding those ordinarily imposed on parents.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and set aside the order striking out the allegation of a non-delegable duty: Woodland v Essex County Council [2013] UKSC 66.
2. Court of Appeal: By a majority, affirmed Langstaff J’s decision; Laws LJ dissented: [2012] EWCA Civ 239; [2013] 3 WLR 853.
3. High Court: Langstaff J struck out the pleaded allegation that the education authority owed a non-delegable duty of care.