The 'Chilling Effect' of Woodland v Essex County Council?

Article

23 July, 2014

Woodland v Essex County Council [2013] UKSC 66

The Supreme Court in a landmark ruling found that local authorities could be found liable for the negligence of third parties.

The Claimant in the case of Woodland v Essex County Council suffered a severe brain injury after getting into difficulties during a school swimming lesson. The Claimant was aged 10 at the time of the accident. The school had a duty to provide swimming lessons pursuant to the National Curriculum and they had delegated the provision of those lessons to a private contractor, Direct Swimming Services. The pupils were under the supervision of a swimming teacher and lifeguard, both of whom were employees of Direct Swimming Services.

The issue before the Court arose out of an allegation in the Claimant's pleadings that the local authority owed the Claimant a "non-delegable duty of care". The High Court and the Court Appeal found that no such duty existed. To find that there was a non delegable duty owed by the Local authority, would be to impose a duty to ensure reasonable care was taken by the school, employees and by any third parties the school contracted with. Lord Justice Tomlinson in the Court of Appeal warned that the imposition of such liability would have a 'chilling effect' on the willingness of education authorities to provide valuable educational experiences for their pupils. He was concerned that it would have significant implications not just for all education authorities but also for all those who operated institutions which provided education or healthcare.

The Supreme Court however allowed the appeal unanimously. The Supreme Court set out the following "defining features" which would give rise to a non-delegable duty:
The claimant is a patient or a child, or especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples were likely to be prisoners and residents in care homes.

  1. There is an antecedent relationship between the claimant and the defendant which puts the claimant in the actual custody, charge or care of the defendant, and from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, not just a duty to refrain from conduct which would foreseeably damage the claimant.
  2. The claimant has no control over how the defendant chooses to perform the relevant obligations.
  3. 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; and the third party is exercising, for the purpose of the function delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.
  4. The third party had been negligent in the exercise of the delegated function.

The Supreme Court was keen to demonstrate that a non-delegable duty would only be imposed where it was 'fair, just and reasonable' to do so. Lord Sumption stated that the courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. However, in the circumstances he was of the opinion that in such a situation it was not an unreasonable burden to cast on Local Authorities. Lord Sumption set out his reasons for extending the law in such a manner:

  1. The criteria are consistent with the long-standing policy of the law, to protect those who are both vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives.
  2. Parents are required by law to entrust their child to a school. They do so in reliance on the school's ability to look after them, and generally have no knowledge of or influence over the arrangements that the school may make to delegate specialised functions.
  3. It is not an open-ended liability, schools will only be liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises.
  4. Until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable.
  5. The responsibilities of fee-paying schools are already non-delegable because they are contractual, and the possibility of contracting out of them is limited by legislation. In this particular context, there seems to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services are provided by a public authority.

Forbes comment

It should be noted that liability is not open ended. In the Judgment it was made clear that in the absence of negligence by the local authority they will not be held liable for contracted third parties unless it was their duty to carry out the relevant function. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours.

It was stressed in the judgment that 'in a longer historical perspective' the ruling does not significantly increase the potential liability of local authorities, as they are only being held responsible for activities which previously would have been performed by staff for whom the authority would have been vicariously liable.

As local authorities are increasingly required to outsource services, it is more important than ever to ensure that those third parties are reasonably competent and able to carry out services on behalf of the local authority. It should be noted, that this case may have far reaching consequences and apply to vulnerable adults, the elderly, patients and prisoners. Whether it ultimately it has a 'chilling effect' on local authorities as prophesised by Lord Justice Tomlinson, remains to be seen.

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