24 June, 2016
All schools have a risk management policy, do regular risk assessments and have the safety of the pupils as their highest priority but does your risk management process cover all eventualities?
In a case which has been rumbling along for several years Essex County Council as Local Education Authority were held liable for the catastrophic injuries to a pupil during a school swimming lesson. Essex had employed a swimming teacher who, it turned out did not have insurance. Under normal circumstances, if an independent school, Academy or Local Authority outsources activities, which they have a duty to perform, to a third party and that third party is negligent, the third party bears responsibility. However, as the Claimant in this case could not sue the Swimming teacher they turned to the school.
The Supreme Court issued a unanimous decision that non-delegable duties could 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 upon the school. 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.
The contracting out of services is now a fact of life and a political policy which I do not see going away any time soon. As such Schools need to be very aware of the potential risks which they face in doing so and ensure that all contracts for out-sourcing are only entered into after due diligence is performed and evidence of significant insurance cover is provided, providing specifically for an indemnity for the School.
If you are looking for any more information with regards to our services view our Insurance section. You can also contact Kella Bowers in our Insurance department via email or phone on 01254 222437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.