Treading Water; What does a ‘non-delegable duty of care’ mean for public bodies and independent contractors?

On 5 July 2000, 10 year old Annie Woodland suffered a serious brain injury during a school swimming lesson in normal school hours as required by the national curriculum.

At the time she was a pupil at Whitmore Junior School, for which the Essex County Council education authority was responsible.

Annie was swimming in a group being taught by a swimming teacher, Ms Burlinson, and a lifeguard, Ms Maxwell, was poolside. It is alleged that both negligently failed to notice that Annie had got into difficulties in the water, causing her to suffer the injury which has left her with severe brain damage. Neither was employed by Essex CC, their services had been provided to Essex CC via a contract with Direct Swimming Services to provide the lessons.

Subsequently proceedings were issued for negligence against numerous parties including Essex CC. Part of the claim included an allegation against Essex CC that at the relevant time it had owed her a ‘non-delegable duty of care’. The Council denied it owed that duty and successfully applied to strike out that allegation against it in the High Court. The allegation to strike out was upheld in the Court of Appeal.

Last month the Supreme Court passed down its verdict on the case and held that Essex CC had delegated the control of Annie and her classmates to third parties to carry out an integral part of its teaching function and if it was found that the third parties had been negligent then the Council would be in breach of that duty. The case has now been passed back to the High Court for the court to determine whether Essex CC will be liable for Annie’s injury.

The ‘non-delegable duty of care’ is a departure from the normal fault-based principles of negligence and can only arise in exceptional cases. Lord Sumption in his judgment set out five defining features of the circumstances in which a non-delegable duty of care will exist.

So what can schools do to protect themselves from a breach of a ‘non-delegable duty of care’?
There are three options available to schools;

1. Don’t offer activities with a high degree of risk. Any danger of liability is averted but the children lose out on new experiences.

2. A school may attempt to insure themselves against breaches of a ‘non-delegable duty of care’ committed by independent contractors. In reality an insurance premium off the back of the Supreme Court’s judgment will be sky high.

3. Schools should seek to have contractual clauses drafted by legal experts whereby the independent contractor indemnifies the school in relation to the liability of the school’s non-delegable duty of care, where the liability is a result of the independent contractor’s negligence. In reality only large independent contractors could indemnify losses when the worst case scenario occurs, as in the case of Annie where her claim for damages is estimated to be in the region of £3milliom.

If you are a public body, why not speak to one of our team who can examine the contracts you have in place with your independent contractors and advise you on your current outsourcing procedures.

Andy Boyde – Sports Consultant