A new battle ground?

In what circumstances do local authorities owe a non-delegable duty, say to a pupil, when outsourcing services? Steven Ford QC analyses a significant Court of Appeal ruling.

What responsibility to service users does a local authority retain when it outsources the supply of those services to an external provider? If a school sends a class of children to an outward bound centre, or a social services authority places a child at a privately run children’s home, is the authority liable for injury caused by the negligence of the external provider or its employees? There is no doubt that the authority is under a duty to take reasonable steps to ensure that “the premise are apparently safe…and staffed by competent and careful persons”[1] but can the authority be held liable even though it has made all reasonable checks and carried out a suitable and sufficient risk assessment? The Court of Appeal was asked, for the first time, to consider this question in Woodland v Essex County Council [2012] EWCA Civ 239.

Annie Woodland was 10 years old when (in July 2000) she suffered brain damage in a near drowning accident during a school swimming lesson. Essex was responsible for the school but it engaged an independent contractor to take swimming lessons. The contractor employed the life guard and the swimming teacher who took the lesson. The claimant brought a claim against the contractor, the lifeguard and Essex alleging that the accident happened because of inadequate supervision by the teacher and the lifeguard during the lesson. The claim against Essex was that it failed in its duty to ensure that the contractor was reasonably competent, but also that Essex was liable for any negligence on the part of the contractor, swimming teacher and lifeguard because the duty it owed the claimant was “non-delegable”.

The Court of Appeal held that the Judge had been right to strike out the allegation that the duty owed by the school was non-delegable, but it was accepted that there may be circumstances in which a non-delegable duty could be owed by a local authority. So what exactly is a non-delegable duty, and when will a non-delegable duty be owed by a local authority?

The terminology is misleading. As Laws LJ pointed out in his (dissenting) judgment (paragraph [8]) “In fact there is no instance of a delegable duty of care in the law of negligence”. A person who owes another a common law duty of care can never divest themselves of it simply by placing that person in the care of another.  But a duty of care can normally be discharged by entrusting its performance to an apparently competent independent contractor. If I invite you to my house and you slip on my stair carpet because my fitter has laid it negligently, I will have a defence to your claim if I have taken reasonable steps to ensure that my fitter was competent[2]. A non-delegable duty is one that cannot be discharged in this way. The person who owes the duty remains liable if the duty is breached, regardless of his relationship (if any) to the primary tortfeasor: it is a duty “not merely to take care, but a duty to provide that care is taken”[3].

It has long been recognised that the common law (and probably the statutory[4]) duties that an employer owes his employees are non-delegable[5]. The historical justification for this was the desire to escape the injustice flowing from the doctrine of “common employment”[6]. Such considerations do not arise in relation to the duties owed by public authorities (other than to their employees), but the courts have periodically grappled with the question of whether a non-delegable duty is owed in a closely analogous relationship: NHS hospital and patient[7]. And although there is still no definitive answer to that question, two of the hospital cases formed the foundation of the reasoning of the majority in Woodland.

In A (A Minor) v MOD [2004] EWCA Civ 641 the appellant, a young boy whose father was stationed in Germany, suffered severe brain damage as a result of the negligence of an obstetrician in a German hospital. He contended that the MOD, which had arranged for treatment to be provided for the families of service personnel in Germany, owed him a non-delegable duty and that the negligence of the German doctor constituted a breach of that duty.

In Farraj v Kings Healthcare NHS Trust [2009] EWCA Civ 1203 the claimants were carriers of a gene which could cause a disabling blood disorder. Their second child suffered from the condition. Mrs Farraj became pregnant and was advised to undergo DNA testing to ascertain whether their third child would suffer from the disease. Foetal tissue taken from Mrs Farraj’s chorionic villus sample had to be identified and the foetal cells cultured. The defendant (KCH) arranged for this work to be done by a cytogenetics laboratory run by a reputable independent contractor. A cultured sample was returned to KCH, tested, and found negative, but when the claimants’ third child was born he was found to have the disease. The laboratory was said to have been negligent because their technician had doubts whether the sample provided contained any foetal tissue, but failed to communicate her doubts to KCH. It was alleged that KCH was liable to the claimants because the duty it owed them could not be delegated to the laboratory.

In each case the Court of Appeal dismissed the claim. There may be circumstances in which the duty owed by a hospital to its patient was non-delegable, but those circumstances would not extend beyond cases where the hospital was actually carrying out the treatment. In A (A Minor) Lord Phillips said (at paragraph [47]) that the appellant’s argument “would go beyond not merely the decisions of the English courts but also those of the Australian courts. This was because hitherto a non-delegable duty has only been found in situations where the claimant suffers an injury while in an environment over which the defendant has control”.

The majority in Woodland held that these cases were sufficiently closely analogous to determine the appeal. The swimming lesson in which Annie Woodland’s accident occurred was not given by school staff and nor were the premises in which it took place controlled by the authority. The duty could be discharged by entrusting its performance to apparently competent contractors.

The key issue therefore is control: control over the activity in which injury occurs, control over those responsible for that activity or control over the premises where it occurs. Even in the field of employer’s liability it has been recognised that there must be limits to the concept of the non-delegable duty based upon the opportunity to exercise control[8]. Liability in the absence of control would cause significant organisational and insurance difficulties for local authorities. The Court of Appeal recognised this. Tomlinson LJ said (at paragraph [57]) that “the imposition of such a liability would be likely, I think, to have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils”  and he noted (at paragraph [34]) the unfairness of (in effect) making the authority the insurer of the independent contractor when “one would expect the costs charged to [Essex] for the service provided by [the independent contractor] to reflect the cost of [the independent contractor] arranging adequate insurance”.

Nonetheless, Woodland is the first case to recognise that in the right circumstances a local authority’s duty to a pupil may be non-delegable. The outcome might well have been different if the swimming pool had been on school premises. Commonwealth jurisdictions have been much more willing to find that local authorities owe duties that cannot be delegated[9]. There is no reason to believe the principle will be confined to the field of education and, with an eminent member of the Court of Appeal giving a minority judgment which would have held the duty to be non-delegable on the facts of Woodland, further attempts to explore the limits of the local authority’s non-delegable duty are likely.

Steven Ford QC is a barrister at 7 Bedford Row. He appeared for Essex County Council in Woodland.

[1] Brown v Nelson [1971] LGR 20

[2] Occupiers’ Liability Act 1957 section 2(4)(b)

[3] The Pass of Ballater [1942] P 112

[4] Uren v Corporate Leisure UK Ltd [2011] EWCA Civ 66 at [71]

[5] Wilson’s and Clyde Coal Co v English [1938] AC 57

[6] By which it was an implied term in every contract of service that an employee agreed to run the risks incidental to his employment; the defence was abolished by the Law Reform (Personal Injury) Act 1948

[7] Langstaff J’s first instance decision in Woodland [2011] EWHC 2631 (QB) at [17] to [25]

[8] Cook v Square D [1992] ICR 262: employer not liable to employee injured owing to defective flooring in premises in Saudi Arabia. Extent of employer’s responsibility depended on what was reasonable having regard to the place where the work was done, the nature of the work and the premises, the employee’s experience, the employer’s knowledge of the premises and the degree of control he could exercise.

[9] Laws LJ in Woodland at paragraphs [10] to [13]; Commonwealth v Introvigne (1982) 150 CLR 258