Supreme Court set limits on Public Authorities delegating responsibility to Third Parties

In Woodland -v- Essex County Council [2013] UKSC 66 the Supreme Court tightened the law in relation to the liability of local education authorities for the negligent actions of contractors to whom they give responsibility for the fulfilment of educational functions.

The Facts

This tragic case involved a 10 year old child who suffered a serious brain injury on 5 July 2000 dur-ing a swimming lesson arranged by the Defendant's school in school hours and as required by the national curriculum. The child received tuition from a swimming teacher employed by an external company who had a contract with the school to provide swimming lessons. The swimming lessons were held off the school site, and the school staff had no input in the teaching of the swimming.

A claim was brought against the local education authority ("LA") on the basis that the swimming teacher had been negligent and the school had a non delegable duty of care to the pupil.

The Law

The LA argued that it did not have a non delegable duty of care and that they had delegated the duty to a responsible independent contractor, and the school should therefore not be held liable for any negligence on the part of the contractor. This argument was accepted at trial and the victim's family appealed.

The Supreme Court unanimously allowed the appeal and the case will now return to the High Court to determine whether negligence can be proven.

A key factor in this case was that the swimming lesson was an integral part of the school's educa-tion of the Claimant. The lesson was part of the curriculum and the alleged negligent act took place in the performance of the Defendant's duty to educate the children.

This liability is not open ended. It only applies to those activities where there is a duty to perform them and so will not apply to extra curricular activities. It will also not apply where none of the Edu-cation Authority's control has passed to the independent contractor, such as a Bus Driver or Mu-seum Attendants.

Key Triggers

Lord Sumption of the Supreme Court identified four primary characteristics of a non-delegable duty of care:

• The claimant is a patient or child or is for some other reason especially vulnerable or de-pendent on the protection of the defendant against the risk of injury, for example, pris-oners and patients in hospitals and care homes.
• There is a pre-existing relationship between the claimant and the defendant, which places the claimant in the actual custody, charge or care of the defendant which is inde-pendent of any negligent act or omission.
• There is a positive duty on the defendant to protect the claimant from harm, and not just a duty to refrain from conduct that could foreseeably damage the claimant. This duty is non-delegable and personal, meaning that where a particular function is delegated to another, the duty endures.
• The claimant has no control over how the defendant chooses to perform those obligations.

He further stated that a breach of this duty will occur where:

• The defendant delegates the performance of a function which is an integral part of the posi-tive duty to the claimant to a third party contractor; and
• In carrying out the function or task delegated, the third party is actually exercising the de-fendant's custody or care of the claimant and the element of control that goes with it; and
• The third party is negligent in the performance of that function (and not in some collateral respect).

Implications

This decision will also affect any public authority with responsibilities towards not just schoolchil-dren but other vulnerable people for whose care the public authority has accepted responsibility - for example, elderly residents of care homes and prisoners.

Public authorities must ensure that any contracts entered into with third parties include terms to carry insurance that indemnifies the public authority in the event of negligence on the part of the third party (and that, if such insurance is already in place, the terms be reviewed). Local authori-ties/defendants will need to pursue independent third parties for an indemnity or contribution should these claims succeed.

If you have a case where there appears to be a delegated duty of care it is important to review the categories in detail and to establish whether the characteristics are satisfied.