WOODLAND V ESSEX COUNTY COUNCIL: How the world has changed!
On the 23rd October 2013, the Supreme Court handed down judgment in the case of Woodland v Essex County Council. It is fair to say that this decision re-writes the law for people bringing and defending compensation claims and will be of huge benefit to many of the clients we represent at Bolt Burdon Kemp.
The facts of this particular case were tragic. Miss Woodland was a 10 year old pupil at Whitmore Junior School in Essex run by Essex County Council, the Local Education Authority (LEA). The school needed to teach their pupils swimming as part of national curriculum and swimming lessons were given in school hours at a local pool. A teacher from the school accompanied the pupils but someone else (Mrs Burlinson) taught the pupils how to swim and there was a lifeguard (Ms Maxwell) in attendance. Miss Woodland got into difficulties during the lesson and suffered a serious hypoxic brain injury. Her family alleged that Mrs B and Ms M had been negligent. Neither were employed by the LEA but by a Mrs Stopford who ran a business called “Direct Swimming Services” under contract with the LEA to provide and teach swimming lessons.
Miss Woodland sued Essex for a breach of a “non delegable duty of care”. Her case on this point was struck out in the High Court and also by the Court of Appeal, both of which refused to accept that such a duty existed. However the Supreme Court overturned those decisions. Had Mrs B and Ms M been employed directly by the school, Essex would have been liable to Miss Woodland in damages if it could have been proved that the individuals had been negligent and that that negligence had caused Miss Woodland’s injuries. This is so by virtue of the principle of vicarious liability which effectively holds an employer responsible for the acts or omissions of its employees. In Miss Woodland’s case, the staff teaching her were truly independent contractors so vicarious liability didn’t apply. The Supreme Court found that this was clearly unfair: How can it be that Essex was off the hook merely because they decided to contract out one of their core functions (to teach a subject on the national curriculum) and take care of their pupils whilst they did so? To ensure that justice was done here, the Supreme Court accepted that Essex as the LEA owed a non-delegable duty of care to Miss Woodland and therefore would have to compensate her if the swimming instructor Mrs B or the lifeguard Ms M were found to be negligent (which will be the subject now of further proceedings). It should be noted that any Defendant who has either a statutory duty of care or a duty of care at common law may be caught by this judgment.
Points to note:
Lord Sumption, who gave the leading judgment, said that “non delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based and are therefore exceptional”.
Whenever our higher courts extend the law, they always say that. However vicarious liability – which we widely rely upon when prosecuting many of our clients’ claims – is exactly the same: A principle inconsistent with the idea that the person at fault has to pay. It is often not the employer who is really at fault but their employee and it is only because the employer has deeper pockets, or is insured, that justice is done by holding them responsible. The law of vicarious liability itself has been extended very recently this year by the Supreme Court in the case of Various Claimants v The Catholic Child Welfare Society. The case extends that doctrine not only to true employees but people who are in a relationship with the Defendant ‘akin to employment’. In that case too, the Supreme Court explained that this extension of the law was an exceptional indulgence in limited cases. Don’t be fooled! The world really has changed!
The defining features of this (new) non-delegable duty of care have been carefully articulated by Lord Sumption in his leading judgment in Miss Woodland’s case:
The Claimant will normally be a patient or a child or otherwise someone especially vulnerable and who is dependent on the protection by the Defendant against a risk of injury.
The relationship between the Claimant and the Defendant is such that the Claimant is placed in the custody, charge or care of the Defendant so that the Defendant has a positive duty to protect the Claimant from harm. There is likely to be an element of the Claimant being ‘controlled’ by the Defendant in the exercise of its duty and this special relationship between the parties will pre-date the negligent act or omission itself.
The Claimant will have no control over how the Defendant chooses to perform its obligations – that is whether personally or whether by contracting out to third parties.
The Defendant must have delegated some function which is an integral part of the positive duty assumed towards the Claimant. The third party is effectively carrying out the Defendant’s custody or care of the Claimant and the element of control that comes with it.
The third party must have been negligent in the performance of the very function assumed by the Defendant and delegated to him by the Defendant.
Note that Lady Hale, the Deputy President of the Supreme Court puts a caveat to this list: “Such judicial statements are not to be treated as if they were statutes and can never be set in stone”. So is there a green light here to challenge these features where cases demand it, and to extend the law further? Watch this space!
In a nutshell then: where someone has contracted out a job to a third party, a job they could have done themselves, but the performance of that job was part and parcel of their overall direct duty to the Claimant, a Claimant harmed by the performance of that job can recover from the person or body who owed the original duty to them.
The Supreme Court looks back at previous cases (painfully familiar to some of us here at Bolt Burdon Kemp…)
Child A v MoD was correctly decided. The Ministry of Defence (MoD) was not responsible for the negligence of a hospital with which it had contracted to treat soldiers and their families. The army arranged it, but did not provide the treatment. This was not the delegation of a function that the MoD had assumed personally to carry out and no delegation of any custody exercised by the MoD over soldiers and their families.
Farraj v Kings Healthcare NHS Trust: The hospital employed an independent laboratory to analyse a tissue sample for a patient who was not being treated by that hospital. The lab carried out that analysis negligently. The patient was therefore not in the Defendant’s custody or care on the particular facts of that case. Had it been, the decision surely would have been different, now in the light of the Woodland case.
Myton v Woods: Also correctly decided even in the light of the Woodland case: A LEA which arranged and paid for taxis to transport children to and from school was not responsible for the negligence of the taxi driver because there is no statutory duty to transport children to school.
Application of this judgment to the cases we deal with:
Kids injured at school. Whether we are talking about state or private schools, a non-delegable duty of care is now a fact. This had been discussed by the House of Lords in the leading case of Lister v Hesley Hall back in 2002, but that judgment had preferred to pin liability on the school for a warden who sexually assaulted school children in his care by extending the principle of vicarious liability. That case established that a school was vicariously liable for the acts of employees where there was a ‘close connection’ with the act/ omission complained of and the duties the employee was in fact employed to do. That is because clearly no one is employed to abuse children; but the abuse was a perverse manifestation of the warden’s actual job which was to care for them. Famously the House of Lords said in that case that had the pupils been abused by the groundsman, not the warden, they wouldn’t be able to recover because the care of the pupils was not closely connected to the groundsman’s job. However in the light of Woodland, has the law now changed? It would depend on the facts of course but if the children were harmed during the period when the school had a duty to take care of them, in principle, why not? Does the fact that the children were deliberately harmed (assaulted) rather than negligently harmed make any difference? I can’t see how it can.
Kids in care (particularly the acts of foster carers or others): The law before Woodland meant that in this country a Claimant could not sue a Local Authority (LA) for the acts of foster carers. At Bolt Burdon Kemp, we felt that the very recent extension of vicarious liability meant that could be challenged if it could be shown that foster carers were in a relationship ‘akin to employment’ with the LA (Various Claimants v Catholic Child Welfare Society again). But surely the easier route now is to cite Woodland: the LA have statutory responsibilities to take care of children in their care. They can do that themselves (for example by placing the children in homes run by social workers and other employees) or by contracting with third parties (foster carers). The Woodland judgment surely has a direct application here, and Claimant lawyers can forget the thorny issue of vicarious liability completely to win compensation for their clients.
Patients in hospital: where duties of a hospital or a doctor are sub contracted out…
People resident in care homes
People detained under the Mental Health Act
Prisoners negligently injured in custody
Members of the armed forces?
We are all getting our heads round this judgment and seeing just how and to what extent it will impact on our practice, and support our clients seeking compensation. Naturally, it will need to be considered on a case by case basis. My guess is however that the case will have some far-reaching effects, and will assist many of our clients greatly in seeking justice for the wrongs done to them. I have great respect for Miss Woodland’s parents in taking this test case – from their tragedy, something good has come to benefit not only their child, but many other people too.
Jonathan Wheeler, Bolt Burdon Kemp
13th November 2013