Local authorities’ liability for the negligence of independent contractors
Woodland v Essex County Council  UKSC 66
The Supreme Court has unanimously ruled that a local authority owed a non-delegable duty of care to a pupil who was seriously injured during a swimming lesson provided by an independent contractor.
In July 2000, the Claimant, who was then aged 10, was a pupil at a Junior School for which Essex County Council, (‘the Council’), was responsible. In accordance with the national curriculum at that time, swimming lessons took place in normal school hours. The school had arranged for the swimming lessons to be provided by an independent contractor, Mrs S, who carried on an unincorporated business under the name of ‘DSS’. Mrs S provided the services of a swimming teacher, Ms B, and a lifeguard, Ms M.
During the course of a swimming lesson, the Claimant got into difficulties and was found hanging vertically in the water. The Claimant was resuscitated, but suffered a serious hypoxic brain injury. The Claimant issued proceedings against a number of parties. Her case against the Council included an allegation that it owed her a non-delegable duty of care with the result that the Council was liable for any negligence on the part of Ms B and Ms M. The Council applied to strike out this allegation and was successful in the High Court and the Court of Appeal. The Supreme Court has unanimously allowed the Claimant’s appeal.
The issue for the Court was the scope of the Council’s duty to pupils in its care. Was it a duty to take reasonable care in the performance of the functions entrusted to it so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them (a non-delegable duty)?
Lord Sumption, who gave the main Judgment, confirmed that English law has long recognised that non-delegable duties exist. There are two broad categories of case in which such a duty has been held to arise. The first, which was not relevant here, is where the Defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The second category, which was relevant, comprises cases where the common law imposes a duty upon the Defendant which has three critical characteristics.
First, it arises not from the negligent character of the act itself, but because of an antecedent relationship between the Defendant and the Claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the Defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the Defendant’s.
Lord Sumption considered that in negligence cases, principle and authority suggest that the relevant factors from which the personal character of the duty derived are the vulnerability of the Claimant, the existence of a relationship between the Claimant and the Defendant by virtue of which the latter has a degree of protective custody over the Claimant, and the delegation of that custody to another person.
Non-delegable duties of care are inconsistent with the fault based principles on which the law of negligence is based and are, therefore, exceptional. Lord Sumption recognised that the main problem is "to prevent the exception from eating up the rule." Lord Sumption identified that in the second category of case referred to above, the defining features of cases in which a non-delegable duty of care will arise are as follows:
The Claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the Defendant against the risk of injury.
There is an antecedent relationship between the Claimant and the Defendant, independent of the negligent act or omission itself, (i) which places the Claimant in the actual custody, charge or care of the Defendant, and (ii) from which it is possible to impute to the Defendant the assumption of a positive duty to protect the Claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the Claimant. It is characteristic of such relationships that they involve an element of control over the Claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
The Claimant has no control over how the Defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.
The Defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the Claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the Defendant’s custody or care of the Claimant and the element of control that goes with it.
The third party has been negligent not in some collateral respect, but in the performance of the very function assumed by the Defendant and delegated by the Defendant to him.
Whilst acknowledging that the Courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services, the Court was satisfied that it was fair, just and reasonable to impose a non-delegable duty of care on the above criteria.
Applying these criteria to the case before it, the Council had delegated the control of the Claimant to third parties to carry out an integral part of its teaching function during school hours in a place where the school chose to carry out this part of its functions. The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. Therefore, if the third parties were negligent in performing those functions and the Claimant was injured as a result, the Council was in breach of duty.
The case will now return to the High Court to determine whether the Claimant was, in fact, a victim of negligence.
Whilst this Judgment paves the way for Claimants to make more claims against Public Authorities on the basis of their non-delegable duties, Public Authorities will still be able to pursue their independent contractors for an indemnity or contribution. Thus, going forward, it is crucial that Public Authorities ensure that any contracts entered into with third parties contain appropriate terms in relation to carrying relevant and adequate insurance and to provide an indemnity in the event of negligence.