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Is this the end of school swimming lessons?

girl learning to swim in a swimming pool with a coach stood on the side of a pool Print publication

24/10/2013

On 23 October 2013, the Supreme Court handed down its judgment in the long-running case of Woodland v Essex County Council [1] and in the process rewrote the common law.  This will no doubt get lawyers very excited, but let’s look at what it means for schools that delegate certain functions to contractors.

The background to this very sad case is that Ms Woodland suffered a serious brain injury during a school swimming lesson at a local swimming pool during school hours.  She was being taught by a swimming teacher that was not employed directly by the school nor the local authority, but under a contract with the local authority.  She alleged that her injuries were caused by the swimming teacher’s negligence.

The general rule

The general rule is that only the person who is negligent can be sued, but if they are directly employed then the employer can be vicariously liable for the employee’s negligence.  But where they are an independent contractor, as was the case here, the body that engaged the contractor is not liable at common law for the contractor’s negligence.

Non-delegable duty of care

The Supreme Court examined a long line of case law and decided that there should be an exception to the general rule and so a non-delegable duty of care was imposed on the local authority to procure that any contractor it engaged to perform any of its functions carried out those functions with reasonable skill and care.

The duty will not apply in every case.  There are five defining features and all need to apply in order for there to be a non-delegable duty:

  1. The claimant is a patient, child or especially vulnerable person needing protection from injury (such as a prisoner or care home resident)
  2. There is an antecedent relationship between the claimant and the defendant which places the claimant in the custody, care or charge of the defendant and from which the defendant can be imputed to have a positive duty to protect the claimant from harm.  A characteristic of such relationships is that they involve an element of control over the claimant – clearly the case with schoolchildren
  3. 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
  4. The defendant has delegated to the third party some function which is an integral part of the positive duty he has assumed towards the claimant and the third party is exercising, for the purpose of that function, the defendant’s custody or care of the claimant and the element of control that goes with it
  5. The third party has been negligent in the performance of that delegated function.

Outsourced functions

This effectively places schools that have outsourced some of their functions in the same legal position in respect of their duty of care to pupils as those who have not.  As Lady Hale noted in her judgment, it is important that the law should not produce an imbalance that would not make sense to ordiary people.  Whether a school is independent (with non-delegable contractual duties) employs its own staff (so the school is vicariously liable) or has outsourced its functions (so there is a non-delegable duty of care) should make no difference.  Without the non-delegable duty of care, a school that had outsourced its functions would not be able to be sued for the contractor’s breach of duty.

Extra-curricular activities and school trips

So how far does the duty go?  All five elements need to be satisfied for it to apply.  The first three will almost always apply.  The fourth is key.  The contractor must be performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions) and must have been delegated control over the child.

This will not include contractors providing extra-curricular activities outside school hours.  Nor will it apply to contractors to whom no control over the child has been delegated, such as bus drivers, or the theatres, zoos and museums to which children might be taken by school staff in school hours, as the school staff retain control over the children in those circumstances.

Impact on contracts

Academies, maintained schools and local authorities need to look carefully at their contracts where they have outsourced any functions to make sure that they contain suitable remedies should the contractor’s negligence cause the academy or local authority to be in breach of the non-delegable duty of care.

[1]  [2013] UKSC 66, judgment dated 23 October 2013

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