Education authority defeats claim of non-delegable duty of care "in loco parentis" over swimming lesson accident

October 18, 2011

An education authority has fended off a claim that it owed a non-delegable duty of care “in the capacity loco parentis” to a girl who suffered significant brain injuries during a school swimming lesson.

Lawyers for Annie Woodland are suing a range of parties over the incident, which took place in 2000 when she was a pupil at Whitmore Junior School.

As well as Essex County Council (the education authority), the defendants are Basildon Council (the operator of the pool), Beryl Stotford (an independent contractor, trading as Direct Swimming Services, hired by Essex), the Swimming Teachers’ Association, and Deborah Maxwell (a lifeguard employed by Stotford).

Ms Woodland’s lawyers contended that Essex owed Ms Woodland a non-delegable duty of care “in the capacity loco parentis”.

In their pleadings, they submitted that the county council was vicariously liable for the negligence of Stotfold and Maxwell, and directly liable for failure itself to take reasonable care to ensure that Stotfold was an appropriate and competent independent contractor to whom to delegate responsibility for the provision of swimming lessons and associated life-guarding services.

Essex accepted that a common law duty of care was owed to the claimant. This included obligations both to take such care as would be exercised by a reasonably careful parent and to take reasonable steps to ensure that independent contractors who were engaged to carry out tasks with, or in respect of, the pupils were reasonably competent to perform those tasks, and that Stotfold was an appropriate and reasonably competent contractor for those purposes.

However, the county council denied it was vicariously liable for any want of care on the part of the lifeguard, or that the duty was non-delegable as alleged. It therefore applied to strike out the relevant part of the re-amended particulars of claim, or in the alternative sought summary judgment on the issue of non-delegable duty.

In Woodland v The Swimming Teachers’ Association & Ors [2011] EWHC 2631, Mr Justice Langstaff concluded at a preliminary hearing that the claim against Essex on the basis of a non-delegable duty in loco parentis was “bound to fail”. The judge said he did not accept that any court could reasonably be persuaded on policy grounds to uphold such a duty.

The judge set out a series of reasons for this conclusion. They were:

Case-law in this jurisdiction was against it
A restrictive approach should be taken to the circumstances in which a non-delegable duty may apply
It would be a considerable expansion of liability
No case had yet held the duty to exist even in the case of a hospital (and two recent appeal authorities had denied it), except one county court authority which was regarded as wrong by the Court of Appeal in a subsequent case, “yet the whole purpose of hospitals is to ensure the health and well-being of their patients”
There was less cause for a non-delegable duty to exist where health and safety of pupils though important was not the whole purpose of the undertaking
There was no special reason in policy to hold there should be such a duty here, nor those which appealed to Lady Paton in AM v Hendron & Ors [2005] ScotCS CSOH_121
Even if a school may be liable on a non-delegable basis for the actions of non-employee contractors providing educational services directly to children within its premises, this would in itself be an extension of the present common law. “It would be a double extension beyond that for those who are not teaching (but life-guarding) and in premises under the regular control of others, well away from the school itself, to be held liable”
By the same token, if an incremental approach was to be taken to recognising new duties, this was beyond a reasonable step further than any recognised case, and fairness and justice did not compel it
It was difficult to identify a consistent policy which might determine when a duty should be non-delegable, but it was likely to be related closely to those which underlie vicarious liability since that was liability which an undertaking may owe for the wrongs of others, albeit less universally so. “More powerful arguments, or similar arguments but of greater strength and applicability, would seem necessary if the undertaking were to held liable not just vicariously but also for the wrongful actions of those it does not employ and cannot directly control. Yet the position of the contractor here is that of a specialist, as a trained life-guard, thus reducing the risk below that posed by in-house less trained staff, with none of the same strength of argument as to enterprise risk or deterrence”
Other reasons of policy tend against non-delegability. “The injury was suffered on premises away from the school, not under its direct control. There is good reason to hold a truly independent contractor liable only as such, and no reason for his pockets to be regarded as so shallow (like those of the employed workman) that another should be the first recourse for compensation for his torts”
There was no reason to assume that a duty to take the same degree of care as a parent would be broken by employing a life-guard for swimming lessons in a relatively lightly populated pool, or that a parent would not delegate his or her responsibilities for the health and safety of a child whilst swimming to such a person
The duty postulated by the claim had no meaningful content (as drafted). A non-delegable duty should be capable of precise and careful formulation, precisely because of the width of its scope
Lady Paton in Hendron regarded it as important in deciding whether non-delegable duties might apply to know that neither vicarious nor direct liability would. They would then be the only route to redress in a deserving case. “That is not, however, the case here”.