In June of this year we released programme 5909 in the Local Government channel: Non-delegable Duty of Care. Here’s a short clip from that programme: https://www.youtube.com/watch?v=0syB_RUaHXQ
The programme looked at non-delegable duty of care in the tragic case of Annie Woodland, a ten year old Basildon schoolgirl who suffered hypoxic brain damage after diving into the deep end of a swimming pool during a school swimming lesson. The school did not have its own pool, and so had arranged for the swimming lessons to be carried out by a third party company. As a result of her accident Annie brought a claim against the school, the preliminary issue to be decided being whether or not a non-delegable duty of care was owed by the school to her. Mr Justice Langstaff rejected the claim on the basis that there was no non-delegable duty owed. She appealed to the Court of Appeal and her appeal was rejected, the majority holding that the most important factor was that the school did not have control over the swimming lesson and over the place where the accident had taken place. However the Supreme Court took a fresh look at the law and decided that a school does owe a non-delegable duty in respect of the care of its pupils. The swimming lessons were an integral part of the teaching function of the school and, in those circumstances, even though the school had delegated the performance of that duty to an independent company, which itself may have further delegated responsibility, either to employees or other sub-contractors, the duty remained that of the school and, therefore, if there was negligence on behalf of anybody who was involved in the delivery of that duty the school would retain responsibility.
Having established a non-delegable duty towards her, Annie went on to succeed in her civil claim based on the swimming teacher and lifeguard failing to properly supervise her, which caused a delay in her being spotted hanging in the water. The judge said that the swimming teacher and the lifeguard should have noticed that Annie was drowning sooner than they did, and their actions “…fell far below the standard of care reasonable to be expected of a teacher…“. Essex County Council would therefore be held liable for their negligence, however interesting an issue then arose as to whether it was just and equitable for the lifeguard (who was insured, whereas the swimming teacher was not) to indemnify the Council.
It was held that the swimming teacher was 2/3rds liable (she was in charge of the class) and the lifeguard was 1/3rd liable (she was on the opposite side of the pool to where the swimming lesson was being carried out). The Court therefore stated that the lifeguard’s insurers should contribute 1/3rd of the Council’s liability to the claimant. This amount is to be assessed at a later date (http://www.bailii.org/ew/cases/EWHC/QB/2015/273.html)
Our programme also considered the case of NA v Nottinghamshire County Council (2015) (http://www.bailii.org/ew/cases/EWCA/Civ/2015/1139.html), which concerned a claim brought by Natasha Armes who was born in 1977 and spent various amounts of time in foster care and residential care during her teenage years. In connection with two particular periods of foster care, one for around one year, and one for around three/four months with Mr and Mrs B, Ms Armes alleged that she had suffered physical abuse at the hands of the foster carers and, in the case of Mr B, sexual abuse. In order to succeed in establishing liability for what had happened in these foster placements, which was the most serious part of the case in terms of harm, she alleged that the local authority was vicariously liable for foster carers, and her claim on that ground failed, but she also alleged that the local authority owed her a non-delegable duty of care so that when she was placed with independent contractor foster carers and those foster carers assaulted her, the local authority was automatically liable for that negligence. She also failed on this second issue.
The claimant then appealed against this decision, but the Court of Appeal have dismissed that appeal, and unanimously rejected the notion that local authorities could owe a non-delegable duty of care for foster parents. The Court said this would be contrary to public policy, as such a wide duty would effectively impose strict liability.
Until next time…
LNTV insight 