Local Authority - Woodland v Essex County Council (Supreme Court)

Where the Defendant has assumed a particular responsibility to take care of the Claimant, the Defendant may have a non-delegable duty of care – a duty not just to take reasonable care of the Claimant, but to ensure that reasonable care is taken by whoever is actually discharging the Defendant’s function.

The Claimant was a pupil whose school had arranged for swimming lessons to be taught by an independent contractor in school hours. During a swimming lesson the Claimant got into difficulty and started to drown. She was resuscitated but suffered a serious brain injury.

The Claimant argued that the school should be held responsible even though it employed neither the swimming teacher nor the lifeguard. The Court of Appeal rejected the claim that the council owed the Claimant a non-delegable duty of care, but the Supreme Court has now reversed this decision and imposed liability for the negligence of the independent contractor.

In order for a non-delegable duty of care all of the following features must be present:

• The Claimant is a patient or child
• Pre-existing relationship between the Claimant and Defendant so that the Claimant is in custody, charge or care of the Defendant such that the Defendant has assumed a positive duty to protect the Claimant from harm
• The Claimant has no control over how the Defendant chooses to perform its obligations
• The Defendant has delegated to a third party some function which is an integral part of the duty it has assumed to the Claimant and in carrying out that function
• The third party has been negligent in carrying out that very function which has been assumed by the Defendant and delegated to the third party
• It must be a function which the Defendant actually has a duty to perform

COMMENT: It has become even more important to check existing contracts, partnership agreements and other arrangements for appropriate provisions and ensure that new contracts and agreements contain every possible protection for your authority. For example:

• Clear indemnity clause
• Clear insuring clause
• Provision to check insurance certificates
• Provision for unrestricted access to audit the provider’s systems, processes and documents for liability resilience – including spot checks etc where appropriate
• Provision to terminate contract or agreement in appropriate circumstances
• Comprehensive claims handling protocol as part of the contract/agreement: Including clarity as to who will handle the claim
• Contractual duty on third party provider to co-operate fully – including access to witnesses, documents, assistance in searching for last known addresses