The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail.
Held: The claimant’s appeal was dismissed (Laws LJ dissenting). Tominson LJ said: ‘I do not consider that it is open to us to find that there was here, on the basis of the pleaded facts, a relevant non-delegable duty of care which will lead to liability in the authority in the event of negligence being found on the part of the Second or Third Defendants or of the swimming teacher . . As I have already observed, so to hold would go beyond anything which has been held as a matter of decision by the Australian courts, and I do not believe that anything has been placed before us which would justify such an extension of our existing law. I do not believe that we can find in the pleaded facts alone any material on the basis of which we could conclude that the imposition of the duty would be fair, just and reasonable.’
Laws LJ (dissenting) said: ‘the question here is not whether an existing duty can be delegated, nor whether to allow so radical a departure from the paradigm duty of care as is found in the rule of vicarious liability. It is whether in the circumstances we should acknowledge ‘a duty not merely to take care, but a duty to provide that care is taken’.’
He concluded that ‘control is too blunt a criterion to constitute an apt qualification of the general principle giving rise to the non-delegable duty of a school or hospital, which I have broadly described as an acceptance of responsibility to take care of the institution’s clientele, being a group of persons who are particularly vulnerable or dependent. The true test reflects the factors which suggest that control is important, but has more nuance. I would express it thus. A school or hospital owes a non-delegable duty to see that care is taken for the safety of a child or patient who (a) is generally in its care, and (b) is receiving a service which is part of the institution’s mainstream function of education or tending to the sick.’
Kitchin LJ said: ‘ the characterisation of the special relationship which has been found to justify the imposition of a non-delegable duty of care in the cases to which I have referred also assists in defining the limits of that duty. The essential elements of that special relationship are that the hospital or school has undertaken the care, supervision and control of a vulnerable person.’ and ‘ the general rule which recognises that the duty to take reasonable care may be discharged by entrusting the performance of a task to an apparently competent independent contractor is an important feature of the law of negligence; and any departure from the general rule must be justified on policy grounds.’
Laws, Tomlinson, Kitchin LJJ
[2012] EWCA Civ 239, [2013] 3 WLR 853, [2012] ELR 327, [2012] Med LR 419, [2012] PIQR P12, [2012] BLGR 879
Bailii
England and Wales
Citing:
Cited – Mitchil v Alestree 1726
In an action upon the case brought against the defendant, for that he did ride an horse into a place called Lincoln’s Inn Fields, (a place much frequented by the King’s subjects, and unapt for such purposes) for the breaking and taming of him, and . .
Appeal from – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – The Pass of Ballater 1942
The court considered whether a duty of care was non-delegable. Langton J said: ‘while in general a person who employs a contractor is not liable for the acts of the contractor, yet where instruments or materials which are in themselves dangerous are . .
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – Donoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
Cited – Gold v Essex County Council CA 1942
The hospital was held accountable for an injury caused by negligence of an employee radiographer. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of . .
Cited – Cassidy v Ministry of Health CA 1951
The court considered the liability in negligence of the respondent for the negligence of doctors employed by it.
Held: The Ministry was liable for the negligence of doctors who were employed by it on contracts of service.
Denning LJ . .
Cited – Commonwealth v Introvigne 1982
(High Court of Australia) A pupil was injured when he swung, whilst skylarking unsupervised, from a halyard attached to a flagpole in the school quadrangle. The halyard was in turn connected to a pulley which was part of a truck attached to the top . .
Cited – Kondis v State Transport Authority 16-Oct-1984
(High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to . .
Cited – D and F Estates v Church Commissioners for England HL 14-Jul-1988
The House considered the liability of main contractors on a construction site for the negligence of it sub-contractors.
Lord Bridge said: ‘It is trite law that the employer of an independent contractor is, in general, not liable for the . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – AM v Reverend Joseph Hendron and others OHCS 13-Sep-2005
Serious abuse was said to have been inflicted by monks of the De La Salle order on those in their charge at an approved school in Scotland. The former pupil claimant contended that the SED owed him a non-delegable duty which entitled him to . .
Cited – Wilsons and Clyde Coal Co Ltd v English HL 19-Jul-1937
The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .
Cited – Roe v Minister of Health CA 8-Apr-1954
The plaintiffs sought damages after being severely paralysed after what should have been minor spinal anaesthetic procedures. The nupercaine had been contaminated by seepage. A part time anaesthetist, not employed directly by the hospital had been . .
Cited – A v Ministry of Defence; Re A (A Child) CA 7-May-2004
The wife of a British Army soldier serving in Germany delivered a premature baby, ‘A’, with a German obstetrician in a German hospital. A suffered brain damage in the birth as a result of the obstetrician’s negligence. The mother claimed against the . .
Cited – Brown v Nelson and others 1971
A pupil at an approved school went on an Outward Bound course including riding on a cable and pulley slung between two trees. From the cable hung a knotted rope. When the pupil got onto the rope the cable snapped, and he fell with it. He suffered . .
Cited – Robertson v Nottingham Health Authority CA 1987
Brooke LJ held that ‘the only rule that this court has to apply in the present case is that if a patient is injured by reason of a negligent breakdown in the systems for communicating material information to the clinicians responsible for her care, . .
Cited by:
At CA – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Negligence
Updated: 11 November 2021; Ref: scu.451842