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From vicarious liability to non-delegable duties...


Some cases are destined for not just one visit to the appellate courts but several. You may remember the case of Woodland v Beryl Stopford and others [2011] EWCA Civ 266. Simon Trigger wrote about it on this blog exactly 1 year ago to the day under the heading ‘We can all now resile from pre action admissions’. It is now back on the issue of non-delegable duties in the context of schools and pupils (Woodland v Essex County Council [2012] EWCA Civ 239).


Just to remind you of the facts, a school pupil, Annie Woodland, suffered a hypoxic brain injury on 5th July 2000 as a consequence of getting into difficulties in a swimming lesson. The swimming pool facilities were not those of the education authority, Essex County Council (‘Essex’), but of Basildon Council. Neither the life guard nor the swimming teacher were employees of the school but of Ms Stopford who traded as Direct Swimming Services. The question was whether Essex owed Annie Woodland a non-delegable duty of care. What was contended was that the duty owed by Essex was personal: that it owed a duty to ensure that reasonable care was taken and that it was not sufficient just to take reasonable care in employing competent contractors.


Such a duty only currently exists in well-defined circumstances – employers are required to take reasonable care for the safety of their workmen, dangerous operations on the highway, particularly hazardous operations, the escape of fire and the rule in Rylands v Fletcher. What was being advocated was an extension of the principle to the school-pupil relationship. The case will also be of particular interest to medical negligence practitioners given the discussion of the hospital-patient relationship.


Laws L.J. was prepared to allow the appeal. He considered that there was a justification for imposing a personal duty in both the school and hospital context based on the acceptance of responsibility for a group of persons who are particularly vulnerable or dependent. However he recognised that there needed to be some limit to the scope of the duty and postulated that ‘a school or hospital owes a non-delegable duty to see that care is taken for the safety of a child or patient who is (a) generally in its care, and (b) is receiving a service which is part of the institution’s mainstream function of education or tending the sick’.


The other judges did not think that anything had been placed before them which justified such an extension of the law and accordingly the appeal was dismissed. Tomlinson L.J.  thought that Laws L.J.’s formulation would result in a finding of liability where a child on a school trip was bitten by an animal due to the negligence of a zoo-keeper unless the trip could be considered not to be a part of the school’s mainstream function of education (which he doubted). He observed that the imposition of such a duty would be likely have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils.

In dismissing the appeal Tomlinson L.J. observed that only the Supreme Court could impose such a duty as was contended for. I suspect this will not be the last time this case is heard of in the appellate courts.


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