SBM: Schools and their Duty of Care (Ward Hadaway)

7th November 2013

A landmark ruling by the Supreme Court has placed the focus firmly on schools and local authorities when it comes to the welfare of children even when they are not being directly looked after by teachers.

 

What happened?

In the case, Woodland v Essex County Council [2013], lawyers for the parents of Annie Woodland, a pupil who almost drowned during a swimming lesson, successfully argued that Essex County Council had a duty of care "in the capacity loco parentis" when Miss Woodland, then aged 10, took part in a school swimming lesson at a local pool in 2000.

 

Miss Woodland got into difficulties in the pool and had to be resuscitated, leaving her with brain damage.

 

The swimming teacher and lifeguard who, it is claimed, negligently failed to notice Miss Woodland had got into difficulties, were not directly employed by the county council. As a result, the council argued that they could not be held liable for Miss Woodland's injuries.

 

Lawyers for Miss Woodland argued that the school still owed her a duty of care, even when third parties were contracted to provide teaching.

 

What did the Supreme Court say?

The Supreme Court overturned an earlier Court of Appeal ruling that the council could not be held responsible for the near-drowning, saying that it was "fair, just and reasonable" to impose a non-delegable duty of care on the local authority.
In his ruling, Lord Sumption said: "It is wholly reasonable that a school should be answerable for the performance of part of its own educational function" and that in the case of Woodland v Essex County Council [2013] if third parties were found to be negligent, Essex County Council would be in breach of its duty of care.

 

What does the ruling mean?

The case considers the scope of schools' duties to take reasonable care in performance of functions by whoever may perform them - a non-delegable duty.

 

While non-delegable duties are rare, they are likely to occur when one or more of the following five characteristics are present:

 

1. The person involved must be a child or otherwise vulnerable person
2. There is an antecedent between the two parties e.g. a school teaching a pupil
3. The claimant (in this case the pupil) can't chose who performs the duties
4. The third party involved has assumed the defendants custody/care of the person
5. The third party has been negligent in the performance of the delegated activity
What does this mean for schools?

 

The ruling is likely to have a significant impact on schools because of the increased outsourcing of educational and supervisory functions.

 

If an incident occurs where it is found that the third party was negligent then the educational establishment will be in breach of that duty and hence potentially open to claims for compensation.

 

Whilst the boundaries of what a school has undertaken to provide may not always be clear cut and would have to be considered on a case by case basis, the ruling does mean schools may have to reconsider the activities they provide to pupils and how these are assessed and monitored.

 

This is particularly the case when it comes to academies and other schools which are not directly under local authority control.
Schools may wish to review the activities they provide and the arrangements they have with third parties who provide them in order to ensure they do not breach any non-delegable duty of care.

 

How can I find out more about this issue?

For more information on this important area, please do not hesitate to contact Stuart Sutton, Associate at Ward Hadaway at stuart.sutton@wardhadaway.com or give one of our education specialists a call on 0191 204 4000.

 

We can provide practical advice on how schools can continue to provide challenging and interesting activities for pupils without leaving themselves open to potential legal action.