Annie Rachel Woodland (a Protected Party Suing by Her Father and Litigation Friend, Ian Woodland) v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Tomlinson,Lord Justice Kitchin |
| Judgment Date | 09 March 2012 |
| Neutral Citation | [2012] EWCA Civ 239 |
| Docket Number | Case No: A2/2011/2872 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 March 2012 |
[2012] EWCA Civ 239
Lord Justice Laws
Lord Justice Tomlinson
and
Lord Justice Kitchin
Case No: A2/2011/2872
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISON
MR JUSTICE LANGSTAFF
9MA91650
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark Turner QC (instructed by Pannone Llp) for the Appellant
Mr Steven Ford QC and Mr Adam Weitzman (instructed by Essex Legal Services) for the Fourth Respondent
Hearing dates: 12 January 2012
INTRODUCTION
This is an appeal in a personal injury action, with permission granted by the judge below, against the decision of Langstaff J given in the Queen's Bench Division on 17 October 2011 by which he held that the appellant's claim to be owed a "non-delegable" duty of care by the respondent education authority was bound to fail on the pleaded facts, and accordingly struck out that part of the pleading which so alleged.
THE APPELLANT'S PLEADED CASE
The appellant, who by her father and next friend is the claimant in the action, was at the material time a pupil at Whitmore Junior School at Basildon in Essex. The school was the responsibility of the respondent, the fourth defendant, to which I will refer as "the authority". The appellant's pleaded case is described by the judge below as follows:
"2. The facts that give rise to this preliminary issue occurred on the 5 th of July 2000. The claimant was then 10 years old. She went with her class to the Gloucester Park swimming pool in Basildon. The class was divided into groups, according to their ability to swim. She was in a group of better swimmers, who used the deep pool. In groups of three or four abreast, at 5 to 10 second intervals, they were to dive into the pool at the deep end, swim the length to the shallow end, exit the pool, and return by the pool side to the deep end ready to swim the next length when it was their turn to do so. The swimming lesson was supervised by a swimming teacher, who was in the pool, and by a life guard, who was at the side of the pool.
3. The swimming pool facilities were not those of the Education Authority. They were run by Basildon Council, the Fifth Defendant. Nor were the life guard (the Third Defendant) and swimming teacher employees of the school. They were employees of the second defendant, Beryl Stopford, who traded as Direct Swimming Services, which provided swimming lessons for school children, and which organised the arrangements under which the children had their lessons, including the availability of the pool for that use.
4. At some point during the lesson, when the claimant was in the pool, she was seen no longer to be swimming front crawl (as she had been) toward the shallow end, but was hanging vertically in the water. There is a dispute of fact as to whether others of her classmates drew the life guard's attention to this, or whether she noticed it for herself. The claimant was pulled from the pool. Resuscitation was attempted. It may be in dispute whether she was breathing spontaneously at the pool side, or whether her breathing ceased subsequently in an ambulance on its way to hospital. It is not, however, disputed that a consequence of the sad events of the 5 th of July was she suffered severe hypoxic brain injuries. If liability is established, damages will be substantial.
5. The legal relationship between the fourth defendant, Essex County Council…, the Education Authority responsible for Whitmore Junior School…, and the third defendant was indirect. She was an employee of the Second Defendant, an independent contractor to Essex.
6. By paragraph 20 of the claim, it is contended that Essex owed the claimant 'a non-delegable duty of care in the capacity loco parentis'. In a pleading comprehensive in its allegations, the claimant asserts that Essex is vicariously liable for the negligence of both the second defendant and the life guard, and directly liable for failure itself to take reasonable care to ensure that the second defendant was an appropriate and competent independent contractor to whom to delegate responsibility for the provision of swimming lessons and associated life-guarding services.
7. Nowhere in the re-amended particulars of claim is the precise nature of the alleged non delegable duty set out, beyond the phrase 'in the capacity loco parentis'."
The assertion of a "non-delegable duty of care in the capacity loco parentis" owed by the authority is made at paragraph 3 of the amended particulars of claim.
In fact the appellant's case was put in three ways. It was first alleged that the authority owed a duty to take reasonable care to ensure that their independent contractor, the second defendant (Beryl Stopford trading as Direct Swimming Services), was careful and competent so that her employees – the lifeguard (the third defendant) and the swimming teacher – were suitably qualified and experienced: paragraphs 5 and 21(a) of the amended particulars of claim. This allegation, and the allegation that the duty thus pleaded was breached, were not the subject of any application to strike out and so remain awaiting trial. Secondly it was alleged (amended particulars of claim paragraph 20) that the authority was vicariously liable for the negligence of the second and third defendants and of the swimming teacher. This allegation was struck out by the learned judge: see paragraph 13 of the judgment and the footnote to that paragraph. There was no question of any of these three individuals being employees of the authority, and therefore no question of the authority being vicariously liable for wrongs committed by them. There is no appeal against the order striking out this part of the claim. The third allegation against the authority was that of a "non-delegable duty", and it is with this alone that the appeal is concerned. The form which the strike-out order took was merely the deletion of the adjectival phrase "non-delegable" in paragraph 3 of the amended particulars of claim.
THE JUDGE'S CONCLUSION
The judge's judgment is very painstaking and contains a detailed review of the learning, both of our courts and those of other jurisdictions, notably Australia. At paragraph 72 he concludes that the claim that the authority "owed a non-delegable duty to the claimant…. [was] bound to fail" on the pleaded facts. He did not accept that any court could reasonably be persuaded on policy grounds to uphold such a duty. He set out, in summary form, thirteen reasons why that was so. The reasons encapsulate what the judge drew from the learning which he had considered.
THE NATURE OF THE DUTY ALLEGED
It is important to appreciate what is the precise nature of the duty for which the appellant contends. It is a duty to ensure that reasonable care be taken to secure the appellant's safety in the course of the swimming lesson. This is a step beyond the paradigm of a duty of care in the law of negligence. The paradigm is a duty by which the impleaded party is answerable only for his own acts or omissions. He is obliged to take care himself; not to see that others take care. But what is alleged here is "a duty not merely to take care, but a duty to provide that care is taken" ( The Pass of Ballater [1942] P 112per Langton J at 117). The duty will thus be violated not only by want of care by the impleaded party, but also by his agents, whether they are his employees or independent contractors.
There is another class of case which is very familiar in the law of negligence. This is the case of vicarious liability. An employer is liable for damage caused by the negligence of his employees acting in the course of their employment. As Sedley LJ pointed out at paragraph 100 in Farraj v King's Healthcare NHS Trust [2010] 1WLR 2139 (to which I will have to refer in greater detail), this principle is to be found as far back as Mitchil v Alestree (1676) 1 Vent. 295. It is radically distinct from the paradigm, for it imposes liability on the employer though he does not or may not owe, and has not broken, any duty of care whatever. Only the employee owes the duty, and only he commits the breach; but the law makes the employer responsible. The rule's rationale no doubt involves "…the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant" (Fleming, The Law of Torts, 9 th edn. (1998) pp. 409–410, cited by Auld LJ in Majrowski v Guy's and St Thomas's NHS Trust [2005] QB 848, quoted in turn by the judge below at paragraph 14 of his judgment).
These classifications are elementary, but they make for clarity. They show that the greater exception to the law's ordinary approach to liability for negligence is the case of vicarious liability, and not the case of duty and breach contended for in this appeal. Vicarious liability imposes legal responsibility on a party owing no relevant duty; by contrast the case in hand, just like the paradigm, fixes the duty-ower with responsibility. It is true the duty-ower will be liable for the negligent act or omission of another; that is the measure of the case's departure from the paradigm. In D F Estates Ltd v Church Commissioners [1989] 1 AC 177, 208, Lord Bridge of Harwich considered however that this was no true exception to the general rule, and drew a contrast with the case of vicarious liability. He stated that liability of the kind now contended for depends "upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus...
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