Woodland v Swimming Teachers Association

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Wilson,Lord Sumption,Lady Hale,Lord Toulson,Lord Clarke
Judgment Date23 October 2013
Neutral Citation[2013] UKSC 66
Date23 October 2013

[2013] UKSC 66

THE SUPREME COURT

Michaelmas Term

On appeal from: [2012] EWCA Civ 239

before

Lady Hale, Deputy President

Lord Clarke

Lord Wilson

Lord Sumption

Lord Toulson

Woodland
(Appellant)
and
Essex County Council
(Respondent)

Appellant

Christopher Melton QC

Ian Little

(Instructed by Pannone LLP)

Respondent

Steven Ford QC

Adam Weitzman

(Instructed by Essex County Council Legal Services)

Heard on 3 and 4 July 2013

Lord Sumption ( with whom Lord Clarke, Lord Wilson and Lord Toulson agree)

1

This appeal arises from a tragic incident on 5 July 2000 at Gloucester Park swimming pool in Basildon, Essex. The Appellant, then aged ten, was a pupil at Whitmore Junior School, for which the Respondent education authority was responsible. The national curriculum, in its then form, included physical training of a number of alternative kinds, one of which was swimming, and pupils at the school had swimming lessons in normal school hours. What appears to have happened was that the Appellant and other members of her class went to the pool, accompanied by a class teacher, Mrs Holt. At the pool, the children were divided into groups. The group to which the Appellant was assigned was taught by a swimming teacher, Ms. Burlinson, with a lifeguard, Ms Maxwell, in attendance. At some point, the Appellant got into difficulties, and was found (in the judge's words) "hanging vertically in the water." She was resuscitated, but suffered a serious hypoxic brain injury. The Appellant alleges (among other things) that her injuries were due to the negligence of Ms Burlinson and Ms Maxwell. Neither of them was employed by the education authority. Their services had been provided to the authority by Mrs Beryl Stopford. She was an independent contractor who carried on an unincorporated business under the name of "Direct Swimming Services", and had contracted with the education authority to provide swimming lessons to its pupils.

2

The issue on the present appeal arises out of an allegation in the Appellants' pleadings that the Council owed her a "non-delegable duty of care", with the result that it is liable at law for any negligence on the part of Ms Burlinson or Ms Maxwell. Langstaff J struck it out on the ground that on the pleaded facts the education authority could not be said to have owed a "non-delegable duty of care". The Court of Appeal affirmed his decision by a majority (Tomlinson and Kitchin LJJ, Laws LJ dissenting). The appeal provides a useful occasion for reviewing the law on what have been called "non-delegable duties of care". But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. The pleadings are unsatisfactory. There are no findings of fact and almost everything is disputed. A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts.

Non-delegable duties
3

In principle, liability in tort depends upon proof of a personal breach of duty. To that principle, there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other: Majrowski v Guy's and St. Thomas's NHS Hospital Trust [2005] QB 848. The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case.

4

The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none. On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authority's duty to pupils in its care. Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them? On either view, any liability of the education authority for breach of it is personal, not vicarious.

5

The law of negligence is generally fault-based. Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. This is because, as Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in Lewis v British Columbia [1997] 3 SCR 1145 at para 17, a common law duty of care "does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care." The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.

6

English law has long recognised that non-delegable duties exist, but it does not have a single theory to explain when or why. There are, however, two broad categories of case in which such a duty has been held to arise. The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The early cases are concerned with the creation of hazards in a public place, generally in circumstances which apart from statutory authority would constitute a public nuisance: see Pickard v Smith (1861) 10 CB (NS) 470 (which appears to be the first reported case of a non-delegable duty), Penny v Wimbledon Urban District Council [1898] 2 QB 212 and Holliday v National Telephone Company [1899] 2 QB 392. In Honeywill and Stein Ltd v Larkin Brothers (London's Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly to "extra-hazardous" operations generally. Many of these decisions are founded on arbitrary distinctions between ordinary and extraordinary hazards which may be ripe for re-examination. Their justification, if there is one, should probably be found in a special public policy for operations involving exceptional danger to the public. But their difficulties do not need to be considered further on these appeals, because teaching children to swim, while it unquestionably involves risks and calls for precautions, is not is not on any view an "extra-hazardous" activity. It can be perfectly satisfactorily analysed by reference to ordinary standards of care.

7

The second category of non-delegable duty is, however, directly in point. It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock). The analogy with public services is often close, especially in the domain of hospital treatment in the National Health Service or education at a local education authority school, where only the absence of consideration distinguishes them from the private hospital or the fee-paying school performing the same functions under contract. In the law of tort, the same consequence follows where a statute imposes on the defendant personally a positive duty to perform some function or to carry out some operation, but he performs that duty by entrusting the work to some one else for whose proper performance he is legally responsible. In Morris v C.W. Martin & Sons Ltd [1966] 1 QB 716, 725–728, Lord Denning MR analysed the liability of a non-contractual bailee for reward in similar terms, as depending on his duty to procure that proper care was exercised in the custody of the goods bailed.

Origins
8

This characterisation of non-delegable duties originated in the law of nuisance, and in a number of seminal judgments of Lord Blackburn in the late nineteenth century....

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78 cases
4 firm's commentaries
  • Medical Law Briefing - December 2021
    • United Kingdom
    • Mondaq UK
    • 19 Diciembre 2021
    ...and that any contract contains a suitable indemnity clause. 4. The landmark case of Woodland v Swimming Teachers Association and ors [2013] UKSC 66; [2014] A.C. 537 gives the legal test for a non-delegable duty to arise at common law. Lord Sumption, giving the leading judgment, stated that ......
  • Medical Law Briefing - December 2021
    • United Kingdom
    • Mondaq UK
    • 19 Diciembre 2021
    ...and that any contract contains a suitable indemnity clause. 4. The landmark case of Woodland v Swimming Teachers Association and ors [2013] UKSC 66; [2014] A.C. 537 gives the legal test for a non-delegable duty to arise at common law. Lord Sumption, giving the leading judgment, stated that ......
  • A school's non-delegable duty of care: UK case provides a timely refresher
    • Australia
    • Mondaq Australia
    • 5 Marzo 2014
    ...case heard by the highest court in the United Kingdom, the Supreme Court (formerly the House of Lords), Woodland v Essex County Council [2013] UKSC 66, provides a useful summary of the key principles as regards schools' non-delegable duties of care in the United Kingdom and the circumstance......
  • Vicarious Liability Remains On The Move…
    • United Kingdom
    • Mondaq UK
    • 27 Marzo 2018
    ...in that duty. In so doing, the court refused to extend the principles of non-delegable duty set down in Woodland v Essex County Council [2013] UKSC 66 (where the local authority was found liable for the actions of a third party supervising a school child who got into difficulties during a s......
7 books & journal articles
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    • Singapore Academy of Law Annual Review Nbr. 2016, December 2016
    • 1 Diciembre 2016
    ...v Ooi Peng Jin London Lucien [2016] 5 SLR 130, citing Chua Thong Jiang Andrew v Yue Wai Mun [2015] SGHC 119. 104 [2016] 2 SLR 544. 105 [2014] AC 537. 106 [2015] AC 1430. 107 [1985] AC 871. 108 [2010] 1 WLR 2139. 109 [2016] SGDC 170. 110 [2016] SGDC 165. 111 Cap 354, 2009 Rev Ed. 112 See Man......
  • Vicarious Liability and Non‐Delegable Duty for Child Abuse in Foster Care: A Step Too Far?
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    • The Modern Law Review Nbr. 79-5, September 2016
    • 1 Septiembre 2016
    ...vGuy’s and St Thomas’ NHS Hospital Trust [2007] 1 AC 224 at [8] per Lord Nicholls.7Woodland vSwimming Teac hers Association [2013] UKSC 66; [2014] AC 537 at [6] per LordSumption.8 [2015] EWCA Civ 1139.9 E. Gumbel, ‘Developments in Vicarious Liability: A Practitioner’s Perspective’ (2015) 31......
  • Case Note
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    • Singapore Academy of Law Journal Nbr. 2017, December 2017
    • 1 Diciembre 2017
    ...4 SLR 521 at [24]. 14 Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd [2016] 4 SLR 521 at [63]. 15 [2014] AC 537. 16 BNM v National University of Singapore [2014] 2 SLR 258; Hii Chi Kok v Ooi Peng Jin London Lucien[2016] 2 SLR 544. 17 Management Corporation......
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    • Singapore Academy of Law Annual Review Nbr. 2014, December 2014
    • 1 Diciembre 2014
    ...care, considered whether this duty was delegable. Distinguishing the recent UK Supreme Court decision of Woodland v Essex County Council[2013] UKSC 66 (Woodland), Loh J held that the duty was delegable. 25.76 Loh J found that, based on the prevailing standard, there was no negligence in fai......
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