1. One would not pin an adult social care label on Woodland v Essex CC [2013] UKSC 66 but it could have a significant impact on the provision of adult, as well as children’s social care. It was a damages claim brought on behalf of a young girl who, when aged 10, suffered a serious hypoxic brain injury, that left her very disabled, during a swimming lesson when she got into difficulties and was found (in the judge’s words) “hanging in the water”. It was alleged that the swimming teacher and a lifeguard had failed to act with reasonable care. But the claim in negligence was brought against Essex CC, the local education authority. The claim alleged that Essex was responsible for the alleged negligence of the swimming teacher and the lifeguard but the difficulty about that was that these persons were not employed by Essex but by a 3rd party, who was an “independent contractor” operating under the name “Direct Swimming Services”. So there was no question of Essex being “vicariously liable” for the negligence of their employees. The appeal raised the question, dealt with as a question of principle, whether the education authority was directly liable to the child because it owed her a “non-delegable duty of care”, so that it was liable in law for the negligence even of the employees of an independent contractor, in this case.
2. The Supreme Court held that the education authority was so liable. Its reasoning however explicitly foreshadows that both children’s and adult’s social care authorities may be liable for the negligence of independent contractors – such as care home and home care providers, to name but 2 – in a range of situations.
3. Lord Sumption on behalf of the Court indicated that English law has long recognised that non-delegable duties of care exist, although it does not have a single theory to explain why. On the one hand, is a heterogenous group of cases in which the defendant employs an independent contractor to perform some function which is either inherently dangerous or liable to become so in the course of his work:
7. The secondcategory of non-delegable duty is, however, directly in point. It 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. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully.
4. After, one has to say, a brilliantly clear and interesting analysis of English and Australian authorities, Lord Sumption reached this decision in principle:
23. In my view, the time has come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non-delegable duties of care. If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features:
(1) 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. Other examples are likely to be prisoners and residents in care homes.
(2) 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.
(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 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.
(5) 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.
6. One should flag up that Lord Sumption on behalf of the Court has specifically identified here, that where a local social services authority arranges residential accommodation for an adult (or, one would infer, a child) the local authority may be liable for any personal injury or property damage (and, potentially, any pure financial loss) sustained by the resident as a result of the negligence of the care home, even if the care home provider is an independent contractor and the arrangements are made under section 26 of the National Assistance Act 1948. It is not graven in stone that this is the path the Courts will follow – but local authorities have been given fair warning that that is, to put it at its lowest, a real possibility.
7. How much further that same logic can be pressed is difficult to predict with certainty, but it certainly appears to be foreseeable that a local authority could be liable for injury, damage or loss caused by the negligence of an independent contractor providing home care, at least, if the amount of care was such that it could be said that the person concerned was “in the actual custody, charge or care of the [local authority]”.
8. In her concurring judgment, with which Lords Clarke, Wilson and Toulson agreed), Lady Hale said that “No-one in this case has seriously questioned that if a hospital patient is injured as a result of a nurse’s carelessness it matters whether the nurse is employed by the hospital or an agency….” (paragraph 34). Objecting that a patient is in the care of a hospital and physically inside a hospital, and a care home resident is likewise physically in as well as under a care home, whilst a person receiving home care is in their own home, seems fairly thin in that, for practical purposes, some persons in receipt of care at home are highly dependent on their carers, in particular where the home in question is part of sheltered or supported housing and the like. Indeed, on the facts, some of these types of arrangements are actually quite hard to distinguish from care home arrangements, once one gets over the different legal structure and the (often rather theoretical) entitlement of the service user to change their care providers. On the other hand, where care is purchased by the service user and/or their family, using direct payments, the local authority is then, surely, in the clear, if the care provider is negligent.
9. So, it may be prudent for local authorities to review their contractual and insurance arrangements, so as ensure that they are covered for such types of loss.
10. As far as concerns whether Essex owed this particular claimant a non-delegable duty of care, the Court held that it did:
25. The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. But I do not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above. My reasons are as follows:
(1) The criteria themselves are consistent with the long-standing policy of the law, apparent notably in the employment cases, to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives. Schools are employed to educate children, which they can do only if they are allowed authority over them. That authority confers on them a significant degree of control. When the school's own control is delegated to someone else for the purpose of performing part of the school's own educational function, it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate.
(2) Parents are required by law to entrust their child to a school. They do so in reliance on the school's ability to look after them, and generally have no knowledge of or influence over the arrangements that the school may make to delegate specialised functions, or the basis on which they do so, or the competence of the delegates, all of which are matters about which only the school is in a position to satisfy itself.
(3) This is not an open-ended liability, for there are important limitations on the range of matters for which a school or education authority assumes non-delegable duties. They are liable for the negligence of independent contractors only if and so far as the latter are 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). In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours, to take some of the examples canvassed in argument and by Laws LJ in his dissenting judgment.
(4) It is important to bear in mind that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable. The recognition of limited non-delegable duties has become more significant as a result of the growing scale on which the educational and supervisory functions of schools are outsourced, but in a longer historical perspective, it does not significantly increase the potential liability of education authorities.
(5) The responsibilities of fee-paying schools are already non-delegable because they are contractual, and the possibility of contracting out of them is limited by legislation. In this particular context, there seems to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services are provided by a public authority. A similar point can be made about the technical distinctions that would otherwise arise between privately funded and NHS hospital treatment.
(6) It can fairly be said that the recognition of a non-delegable duty of care owed by schools involves imputing to them a greater responsibility than any which the law presently recognises as being owed by parents. Parents would not normally incur personal liability for the negligence of (say) a swimming instructor to whom they had handed custody of a child. The Appellants' pleaded allegation that the school stood in loco parentis may not therefore assist their case. The position of parents is very different to that of schools. Schools provide a service either by contract or pursuant to a statutory obligation, and while LEA schools do not receive fees, their staff and contractors are paid professionals. By comparison, the custody and control which parents exercise over their children is not only gratuitous, but based on an intimate relationship not readily analysable in legal terms. For this reason, the common law has always been extremely cautious about recognising legally enforceable duties owed by parents on the same basis as those owed by institutional carers: see Surtees v Kingston-on-Thames Borough Council [1992] PIQR 101, 121 (Beldam LJ); Barrett v Enfield London Borough Council [2001] 2 AC 550, 588 (Lord Hutton).
Application to the present case
b. In my opinion, on the limited facts pleaded or admitted, the respondent education authority assumed a duty to ensure that the Appellant's swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions. The Appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. The swimming lessons were an integral part of the school's teaching function. They did not occur on school premises, but they occurred in school hours in a place where the school chose to carry out this part of its functions. The teaching and the supervisory functions of the school, and the control of the child that went with them, were delegated by the school to Mrs Stopford and through her to Ms Burlinson, and probably to Ms Maxwell as well, to the extent necessary to enable them to give swimming lessons. The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty.
