The legal liabilities arising from the near-drowning of 10 year old Annie Woodland continues to occupy the Courts at the highest level.
The story so far…
The Claimant in this case suffered brain damage when a swimming teacher and a pool Lifeguard both failed to realise she was in trouble during a swimming lesson. The task of providing the lessons had been delegated by the school to a private contractor.
An admission of liability made by the Swimming Teachers Association (insurers of the lifeguard) was withdrawn. The claimant (through her litigation friend) objected, but the Court of Appeal ruled that the insurers were permitted to withdraw the admission.
Essex County Council were then joined to the proceedings based upon the argument that they owed a non-delegable duty in respect of any negligent actions of swimming teachers appointed to teach their pupils. This was important because the swimming teacher and the organisation who had arranged the lessons did not have insurance.
The Supreme Court judgement in 2013 held that the school (and hence the council) owed a non-delegable duty of care and was therefore liable for the actions of the swimming teacher and lifeguard.
This was an important case for local authorities with responsibilities towards patients, children and other vulnerable people, particularly bearing in mind the increase over recent years to delegate these duties.
For example, in GB (a protected party) v Home Office  EWHC 819 (QB) a non-delegable duty of care was found to be held by the Home Office to an immigration detainee. The Home Office was held liable for the negligent medical treatment of their agent who gave the claimant an anti-malarial drug which caused a severe psychotic reaction. The test laid down in Woodland was applied.
The implications of the Woodland test are starting to be felt. The Woodland case may also have relevance in the sphere of responsibility for prisoners or care home residents.
2015 brought more decisions…
Having established the existence of a non-delegable duty, Annie Woodland went on to succeed in her civil action based upon the swimming teachers and lifeguard failing to supervise her properly, causing a delay in her rescue. Mr Justice Blake ruled that both the lifeguard (Maxwell) and swimming teacher (Burlinson) should have noticed Ms Woodland was drowning sooner than they did. This failure "fell far below the standard of care reasonably to be expected of a teacher", he said. The council, of course, will be held liable for their negligence.
Procedurally, an interesting point arose in relation to Contribution Act claims.
The trial judge found both the insured lifeguard and the uninsured teacher of the group liable for the Claimant's injury.
The issue then arose via Part 20 proceedings (a cross claim) on whether it was just and equitable for the lifeguard (Maxwell) to indemnify the local authority under the Civil Liability (Contribution) Act 1978 following the finding of vicariously liability against the council.
Mr Justice Blake found "prime responsibility for the claimant's injuries lay with Ms Burlinson who was the swimming teacher in charge of the class. He held "Ms Maxwell was the lifeguard on duty for the whole pool, located on the opposite side of the pool to where the claimant's swimming lesson was being conducted" He found "she was performing the lifeguard function that the pool rules and past experience both emphasised was the primary role in securing the safety of swimmers. She was trained in rescue procedures whereas Ms Burlinson was not."
The judge concluded that the swimming teacher was two thirds liable, with the lifeguard's contribution being one third. It was therefore held that the lifeguard's insurers should contribute one third to the council's liabilities to the claimant both in respect of damage and legal costs.
The level of compensation due to the Claimant will be assessed at a later date.
And in other news
Ashfords' Insurance Risk Team have had their own small measure of success recently in the County Court at Birmingham, successfully defeating a claim brought on behalf of a child who was 5 when he suffered a burn injury at school. See the attached lawtel report of the claim.
Click here to view on Lawtel.
If you would like to find out more about current issues affecting injury compensation click here or to discuss a potential injury claim please contact Gemma Rowe on 01392 334017 for a free, no obligation chat.