Delegable duties: new boundaries for local authorities' liability

It has been written that not only is the case of Woodland v Essex County Council [2013] UKSC 66 a landmark decision, but one which opens a can of worms for public bodies that want to outsource their services to third party providers. Is that really the case or is this a judgment that is no more than an incremental development of the common law, from which no additional burdens arise?

To understand what the ruling will mean for similar cases and the long term implications for local authorities, it is appropriate to appreciate the factual elements of this case. In 2000 Annie Woodland, age 10, went with her school class to a local swimming pool in Basildon, Essex. The class was divided into groups. In groups of three or four abreast the children were to ?dive into the deep end of the pool, swim to the shallow end, exit the pool and return, for ?their next turn.

The swimming pool facilities were not those of the local authority. The swimming teacher and lifeguard were employees of Beryl Stopford (Direct Swimming Services), which organised and arranged swimming lessons.

During the lesson Ms Woodland was seen to be hanging vertically in the water. The precise circumstances are unclear but sadly it was agreed this young girl suffered severe hypoxic brain injuries.

The question before the Supreme Court was whether the council owed Ms Woodland a non-delegable duty of care. The claimant had lost at first instance and in the Court of Appeal.

The Supreme Court observed that the law of negligence is generally fault based and that the law does not in the ordinary course impose personal liability for what others do, or fail to do. However, there is an exception to that principle, expressed as "non-delegable duty". In these circumstances the law extends beyond being careful, to procuring the careful performance of work ?delegated to others.

No open-ended liability

Lord Sumption considered the time had come to extend the law, making schools liable for the acts of independent contractors. This will concern schools and local authorities, but the extension of the law is not without limit. Indeed, the Supreme Court acknowledged courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services.

That aside, the non-delegable duty is not an open-ended liability. Schools are liable for the negligence of independent contractors only if and so far as they are performing functions which a school has assumed itself responsibility to perform, generally in school hours and on school premises.

Schools will not be liable when they are not to perform the function but only arrange it. Therefore, schools will not be liable for the acts of independent contractors providing extra- curricular activities, such as trips outside of term time. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers, theatres, zoos and museums.

Arguably, with more and more activities being outsourced by schools and local authorities, it is important that the law is revisited to ensure the well-being of children. The activity in this case may well have been something which local authorities once provided and accepted responsibility for. While they may no longer perform the function of teaching children to swim, they will nevertheless remain liable. However, ?provided the local authority has obtained indemnities and ensures the adequacy of liability insurance then, as observed ?by Lord Sumption, this recognition of non-delegable duties does not significantly increase the potential liability of education authorities.

Clearly there will be cases that do not fit neatly into the new principles. An example is a bus driver, in circumstances where the school had undertaken to provide transport and placed pupils in the charge of the driver, rather than that of a teacher.

While initial reaction to the judgement may have been alarm, a more reflective view may well acknowledge that the burden has not significantly increased. Any escaping worms can still be contained by securing indemnities from independent contractors. SJ