Woodland v Essex CC – the case continues

In the Woodland case the Supreme Court ruled that a local authority could owe a non-delegable duty of care in relation to the conduct of school swimming lessons. Malcolm Johnson reports on what happened next in the case.

Annie Woodland was the child who tragically suffered hypoxia during a swimming lesson arranged by her local education authority, Essex County Council. The lesson was supervised by a swimming teacher and a lifeguard, neither of whom were employed by the council itself.

In Woodland v Essex County Council [2013] UKSC 66), the UK Supreme Court established that a local authority could be directly liable under a non delegable duty of care for failure to keep schoolchildren safe in a swimming pool, even though it did not own the pool nor employ the swimming teacher and lifeguard.

However that still left the issue of whether the swimming teacher and the lifeguard were to blame for what actually happened. The claimant's case was that the swimming teacher and the lifeguard failed to exercise reasonable care in the performance of their duties on the day of the accident, in that each failed to keep pupils under observation when in the water and failed within a reasonable period of time to observe that the claimant was in difficulties, raise the alarm and effect a rescue.

There was an added complication. The lifeguard was insured, but the swimming teacher was not.

Essex County Council issued contribution proceedings against the lifeguard, and the High Court now had to decide:

• which of the parties actually looking after the children in the swimming pool were liable for what happened.   
• to what extent the lifeguard was to blame.

Mr Justice Blake gave his decision in Woodland v Essex County Council [2015] EWHC 273 (QB). He found that the claimant was in the water for at least 50 seconds and was in difficulty taking in water for at least 30 seconds. This was not noticed by the swimming teacher, who was apparently teaching her group only a few feet away, or by the lifeguard, whose role in scanning the pool to ensure that children were safe was paramount.

Blake J could identify no reasonable explanation as to why the lifeguard failed to spot that the claimant was in difficulties during this same period. The lifeguard was there to keep an eye on all pool users, and one might have expected the deep end of the pool (where Annie got into difficulty) to be the place where observation needed to be maintained. It was common ground that entry to the water was a particular time of danger for children. There was sufficient time available for the lifeguard to have performed her functions effectively despite her distance form Annie. There was some urgency in the situation when she realised that the children had entered the water before she climbed the lifeguard chair. A lifeguard needed to remain alert to dangers, focus on the users of the pool, keep constant observation and intervene if necessary. If a rescue was to be effected, she was the person who was trained to undertake that rescue. Her failure to observe the claimant until her attention was drawn to her by others was indicative of a failure to perform her role to a reasonable standard. She was not paying sufficient attention to users in the water on the other side of the pool at the material time.

Blake J found both the swimming teacher and the lifeguard negligent.

As a consequence, Essex County Council was in turn directly liable for their negligence because of the UK Supreme Court decision of Woodland v Essex County Council [2013] UKSC 66.

Essex County Council now brought a claim for a contribution against the lifeguard pursuant to Civil Liability (Contribution) Act 1978 s. 1.

Mr Justice Blake gave his decision in Woodland v Essex [2015] EWHC 820 (QB). He said that he could not find that it was just and equitable that the lifeguard, indemnified Essex for the totality of the claimant's damage. She was not an employee of the swimming teacher who was liable for her actions despite, for example, a gross breach of trust or a failure to obey directions or training instructions of the employer. The swimming teacher’s personal responsibility to the claimant should not be passed on entirely to another just because there was an insurance company standing behind them. If the swimming teacher had been insured or had substantial assets of her own, there was no reason why Essex could not have sought a contribution from her as well as the lifeguard.

The prime responsibility for the claimant's injuries lay with the swimming teacher who was the teacher in charge of the group of advanced swimmers, was responsible for them entering the water and undertaking the tasks set in the lesson, and was under a duty to constantly monitor those in her charge. She seriously under-estimated the time the claimant was in the water and was unable to explain why she was not observed to be in difficulties when a few feet away.

By contrast, the lifeguard on duty for the whole pool, located on the opposite side of the pool to where the claimant's swimming lesson was being conducted, and would have been entitled to give her primary attention to the group of less experienced swimmers immediately in front of her. On any view it would have taken a number of seconds for her to have been able to respond to a near drowning incident once observed. Nevertheless, she was performing the lifeguard function that the pool rules and past experience both emphasised was the primary role in securing the safety of swimmers. She was trained in rescue procedures whereas the swimming teacher was not.

Making the assessment of comparative culpability and causative responsibility between the two people whose personal conduct fell below the standards to be expected of them, Blake J would assess the lifeguard’s contribution to be one third.

It would be just and equitable to find for Essex in the contribution claim in the same figure of one third. Consequently the lifeguard would contribute one third to Essex’s liabilities to the claimant both in respect of damage and legal costs.

Malcolm Johnson is an Associate in Blake Morgan’s London office. He can be contacted on 020 7814 5441 or This email address is being protected from spambots. You need JavaScript enabled to view it..