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Public Authorities and Non-Delegable Duties of Care

In Woodland v Essex County Council [2013] UKSC 66, the Supreme Court set out the circumstances in which a non-delegable duty of care arises.

The Appellant got in to difficulties during a swimming lesson at a school which the Respondent ran. She suffered a serious brain injury and alleged that it was due to the negligence of her swimming teacher or the lifeguard in attendance. However, the teacher and lifeguard were provided by an independent contractor and were not employed by the Respondent. The Court of Appeal found that the Appellant was not owed a non-delegable duty of care by the Respondent.

The Supreme Court set out the criteria which give rise to a non-delegable duty of care (other than in highway or hazard cases):

1. The Claimant was a patient, child or especially vulnerable or dependent on the Defendant for protection from the risk of injury. Examples given were prisoners or residents in care homes.

2. There was an existing relationship between the Claimant and Defendant which placed the Claimant in the custody, charge or care of the Defendant. From this relationship it must be possible to impute the assumption of a positive duty to protect the Claimant from harm by the Defendant. These relationships would often involve an element of control over the Claimant.

3. The Claimant had no control over how the Defendant performed its obligations to protect the Claimant.

4. The Defendant had delegated an integral element of its positive duty to a third party so that the third party was exercising the Defendant’s care of the Claimant and the element of control that went with it.

5. The negligence of the third party related to the performance of the delegated function rather than negligence in some collateral respect.

The Defendant’s control of the environment in which the injury was caused is not an essential element to establishing a non-delegable duty of care (as previously set out in A (A Child) v Ministry of Defence [2004] EWCA Civ 641, [2005] QB 183). The essential element was control over the Claimant for the purposes of performing a function for which the Defendant had assumed responsibility.

In the instant case the Respondent met the criteria and a non-delegable duty had been established. The Respondent was in breach of this duty of care if the independent contractors were found to be negligent.

December 4, 2013 · Editorial Team · Comments Closed
Posted in: News