Woodland v Maxwell & Ors

Contribution under the Civil Liability (Contribution) Act 1978 is determined by what is just and equitable, having regard to each person’s responsibility for the damage. Responsibility includes both the degree of fault and the extent to which the conduct caused the damage. A defendant who is vicariously liable, but not personally negligent, is not automatically entitled to a complete indemnity from the negligent individual. Insurance does not justify transferring the whole liability. The court must assess the comparative culpability and causative responsibility of the relevant tortfeasors. On the facts, the swimming teacher bore primary responsibility and the lifeguard was responsible for one third of the damage.

The claimant had nearly drowned during a school swimming lesson. In the principal proceedings, liability in negligence was established against the lifeguard, Deborah Maxwell, and the swimming teacher, Paula Burlinson. Essex County Council was liable under the non-delegable duty recognised in [2013] UKSC 66, although it had not provided the lesson itself.

Essex County Council sought a contribution from Ms Maxwell under the Civil Liability (Contribution) Act 1978. It claimed a complete indemnity, alternatively 50 per cent. The issue was the just and equitable allocation of responsibility between the council, the lifeguard and the swimming teacher.

1. The court rejected the claim for a complete indemnity. Essex County Council was liable for breach of its non-delegable duty, but Ms Maxwell was not its employee and the council was not liable for her conduct on a vicarious-liability basis. The council’s personal responsibility could not be transferred entirely to Ms Maxwell merely because an insurer stood behind her.

2. Under section 2(1) of the Civil Liability (Contribution) Act 1978, the contribution must be just and equitable having regard to the person’s responsibility for the damage. Section 1(2) permits a complete indemnity, but did not justify one on these facts.

3. Following the approach in Downs v Chappell [1997] 1 WLR 426, responsibility required consideration of both comparative fault and causative contribution. The court declined to determine the hypothetical position if both swimming teachers had been sued personally, but found that their responsibilities differed.

4. Ms Burlinson had primary responsibility. She controlled the advanced swimmers, directed their activities and failed adequately to monitor the claimant. Ms Maxwell was responsible for the whole pool and was entitled to give primary attention to less experienced swimmers, but she was performing the pool’s primary safety function and was trained in rescue procedures. Her contribution was assessed at one third.

5. It was just and equitable that Ms Maxwell contribute one third of Essex County Council’s liabilities to the claimant, including damages and legal costs.