Public bodies and independent contractors – Supreme Court rules on non-delegable duty of care

Local authorities and other public bodies could in certain circumstances be held liable for the acts of independent contractors, following the Supreme Court's landmark judgment in Woodland v Essex CC [2013] UKSC 66 on 23 October 2013, in which it ruled that a school owed a non-delegable duty of care to its pupils.

The facts

This appeal arose out of a preliminary application surrounding the duty of care owed by a school in a personal injury claim. The Appellant was a pupil at a school for which the Respondent local education authority was responsible. The National Curriculum at the time included swimming and, as such, the school organised swimming lessons which the Appellant attended during school hours. The lessons were run by an independent contractor.

During one lesson, the Appellant got into difficulties and, though resuscitated, suffered serious brain injury. It later transpired that some of the swimming teachers and the independent contractor were uninsured, so the Appellant brought a claim against the school for the negligence of the swimming teachers and independent contractor.

The court at first instance struck out the claim on the basis that the school (and local education authority) could not be said to owe a "non-delegable duty of care" towards its pupils which would cover the negligent acts of independent contractors. The Court of Appeal affirmed this decision by a majority. The Appellant appealed to the Supreme Court.

The decision

The Supreme Court overturned the Court of Appeal's decision and ruled unanimously that the Respondent did owe a non-delegable duty of care to the Appellant. 

The court explained that the law of negligence is generally fault-based. The law does not generally impose personal liability for the fault of others except in certain unusual situations, for example where the defendant employs a contractor to undertake particularly hazardous work. Because a non-delegable duty of care is inconsistent with this general principle, it can only arise in exceptional circumstances. 

The Supreme Court stated that these exceptional circumstances will only exist where the following conditions are satisfied:

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
2. There is a pre-existing relationship between the claimant and the defendant, independent of the negligent omission, which places the claimant in the actual custody or care of the defendant, and where there is an assumption of a positive duty to protect the claimant from harm
3. The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through a third party
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
5. The third party has been negligent in the performance of the function assumed by the defendant and delegated by the defendant to him.

The Court explained that a non-delegable duty of care would only be imputed so far as it would be fair, just and equitable, but did not think that this was an unreasonable burden to place on local authorities (and, by analogy, hospitals or prisons).

The court stressed the fact that swimming lessons during school hours were an "integral part" of a school's teaching function and it was for this reason that the education authority still had a duty of care towards its pupils. The decision therefore does not, per se, make schools liable for the negligence of third parties carrying out extra-curricular activities which do not form an integral part of the school's functions.

Also pertinent to the decision was the fact that some pupils would have a cause of action against their school in any event, depending on the individual circumstances of the pupil and the school. For example, if a maintained school employed swimming teachers, then the school would be vicariously liable for any negligence of the teachers, as they would be the school's employees. Furthermore an independent school could have liabilities in contract to its pupils by virtue of the fee-paying contract that existed between the school and the pupil's family. One of the Supreme Court Judges felt that there would be an unsatisfactory level of inconsistency if the original decision was left to stand

Following this appeal judgment, the case will be referred back to the High Court for judgment on the facts.

What does this mean for me?

Whilst the judgment tries to ensure that this non-delegable duty of care is not open-ended, this case will not only be relevant to local authorities in the context of schools, but also in relation to residents in care, other public bodies such healthcare providers and prisons, and indeed to any situation where an individual is taken into the custody or care of an organisation where that organisation has a positive duty to ensure no harm comes to the individual.

This decision is a departure from normal principles of fault-based negligence and, in the modern world of outsourcing, will be a concern to public bodies who are increasingly contracting out key functions to independent third parties. It serves as a valuable reminder that organisations may still be held liable for acts over which they had no control, and highlights particularly the need for robust selection of independent contractors. In particular, caution should be taken to ensure independent contractors have their own insurance in place to cover any potential liabilities arising from their delegated activities.

Finally, any unforeseen consequences of an organisation's outsourcing (and any negligence caused by third parties) may be mitigated through indemnity agreements. This case increases the need for carefully worded contractual arrangements which deal with who will meet liabilities for losses arising out of the acts of third party contractors, and the importance of keeping copies of any agreements that are in place.