Article kindly supplied by Muckle LLP
The Supreme Court has held that a school did owe a non-delegable duty of care to a pupil injured during a swimming lesson run by a third party. This extension of liability will have a significant impact on all schools engaging third parties to provide services.
Background
In 2000 a pupil aged ten sustained a serious brain injury during a swimming lesson. Her school had arranged the lesson through an independent contractor, which provided a teacher and a lifeguard, neither of whom was employed by the LA.
The LA accepted that it owed a duty of care to the pupil, which included taking reasonable steps as would be expected by a reasonable parent to ensure that the teacher and lifeguard were competent to perform the swimming lesson at the relevant time. However, the LA argued that it had delegated its duty of care to the independent contractor and could not be held liable for the alleged negligence of a third party.
The High Court agreed with the LA's argument and the Court of Appeal subsequently upheld this decision.
Decision
On appeal the Supreme Court overturned the Court of Appeal's decision. It held that the LA owed a non-delegable duty of care to the pupil and would therefore be liable for the alleged negligence of the independent contractor without any fault on its part.
The Supreme Court reasoned that a school’s duty of care to its pupils is personal and derives from the school's acceptance of the pupil into its care to teach and supervise. Swimming lessons were an integral part of the school’s teaching function and the school's control over its pupils went with that part of its function which it had delegated to the third party.
The Supreme Court considered that it would appropriate to extend liability in this way where:
• The claimant is a patient or a child or, for some other reason, is especially vulnerable or requires the protection of the defendant against the risk of injury;
• There is a pre-existing relationship between the claimant and defendant which places the claimant in the custody, charge or care of the defendant and creates a positive duty to protect the claimant from harm;
• The claimant has no control over how the defendant chooses to perform those obligations;
• The defendant has delegated to a third party some function which is an integral part of that duty;
• The third party has been negligent in the performance of the very function of that duty delegated to him by the defendant.
The case will now return to the High Court to be decided on its facts.
Comment
The imposition of a non-delegable duty of care in providing education is a departure from the normal principles of negligence. This duty will apply to maintained schools, academies and independent schools as well as nursery providers. In addition, it will apply in the health care sector and potentially also care homes and prisons.
The full extent of the limitations to non-delegable liability is yet to be determined. In each case schools will need to consider the extent of the function which has been delegated and the services being provided by the third party. In particular, is the third party performing an integral part of the school's duty to its pupils or something ancillary (e.g. extra-curricular activities outside school hours)?
The risk to schools may to some extent be reduced if they ensure that third party providers give indemnities and take out appropriate insurance cover. Schools should review their services agreements to ensure they have adequate contractual protection.
