Non-Delegable Duties Extended Following Supreme Court Judgement


24 October, 2013

Woodland v Essex County Council 23rd October 2013

Over the last year the responsibilities of Defendants in civil cases have extended in several areas. The recent cases on vicarious liability have been at the forefront of developments in the law. These cases have extended the traditionally accepted parameters of the law of vicarious liability and the current case continues in that direction by expanding non-delegable duties with regards to those who are vulnerable or dependant.


In 2000 Ms Woodland, then 10 years old, suffered serious brain damage during a school swimming lesson at an independent swimming pool. The lesson took place during normal school hours and was required by the National Curriculum. It was alleged by the Claimant that both the swimming teacher and the life guard, who were employed by an independent company not the school, had negligently failed to notice that the Claimant had got into difficulties and therefore the company was liable and not the school.

The Claimant issued proceedings against a number of parties, including Essex County Council. Her allegation against the school was that it had a non-delegable duty of care and was therefore liable for the actions of the independent contractor.

The traditionally held view in cases of this nature is that a Defendant has a defence to such matters if they have employed a reasonably competent contractor, which was exactly what was argued by Essex County Council. The High Court struck out the Claimant's allegation at first instance and this was subsequently upheld by the Court of Appeal.


The Supreme Court, having been asked to reconsider that finding, yesterday issued a unanimous decision against the order striking out the allegation. The case will now return to the High Court for a decision to be made as to Essex County Council's liability.

The Court stated that non-delegable duties arise in the following situations:-

i) Where the claimant is a patient or child or for some other reason especially vulnerable or dependant on the protection of the defendant

ii) Where the claimant is in actual custody, charge or care of the defendant due to an antecedent relationship which imputes to the defendant a positive duty to protect the claimant from harm

iii) Where the claimant has no control over how the defendant chooses to perform those obligations

iv) Where the defendant has delegated some function which is integral to its positive duty to a third party who then exercise the defendant's custody, care and an element of control.

v) Where the third party has been negligent in performing the function assumed by the defendant and delegated by the defendant to him.

The Court stated that they felt that it was just fair and reasonable to impose these duties. The law should protect those who are vulnerable and subject to a degree of control and that the school should be answerable for the performance of its educational function, especially as parents are required by law to entrust their children to a school and have no knowledge or influence over its arrangements.

Forbes Comment

There are a number of issues raised by this case not least the question of what situations this case now brings back under the umbrella of a non-delegable duty.
The Supreme Court stated that they felt that it was not satisfactory that one pupil could sue the school for injuries sustained and another could not, depending on the arrangements made by that school. They also recognised that the recent political position, which has required a vast number of activities to be outsourced, may leave Claimant's vulnerable. One questions therefore whether the Supreme Courts decision is a reaction to ensure that Government policy does not affect the fair application of the law.

Considering the broad application of the categories above, Local Authorities should have regard to the type of Claimant that this case may well cover. The categories do not limit the situation to pupils and as such residents in care homes, both adult and child and indeed prisoners may also attract a similar non-delegable duty.

In reality the Defendant's in these cases may ultimately end up suing the contractor under breaches of contractual responsibility and therefore be no worse off. However, in cases were the contractor does not have facilities to deal with a claim of significant magnitude a Local Authority may find themselves paying a hefty price.

Kella Bowers is and Associate in the Large Loss Department at Forbes Solicitors and can be contacted on 01254 222437 or at Kella Bowers


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