Woodland v The Swimming Teachers' Association & Ors

The contracting out of work which public bodies hitherto performed using directly employed labour is liable to create situations which may be said to call for fresh legal examination of the traditional understanding of relationships giving rise to liability and the extent of those liabilities. In the present case, I am asked to determine as a preliminary point whether the liability of a school to its pupils extends beyond the school having vicarious liability for its employees if their actions should adversely affect the safety of children entrusted to their care to the extent that it encompasses a non-delegable duty, such that the school is responsible for the actions of non-employees who have dealings with children of that school during the course of the school day. Such a non delegable duty is not a vicarious liability: it does not impose a liability to answer in damages for the failures of school employees to take reasonable care for school children within that care. Nor is it a duty to take reasonable care of the safety of pupils when the school itself is carrying out its functions. It is a duty to secure that reasonable care is taken of children during the school day: a duty which is broken if any harm should, for want of care in any person, befall such a child.

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.

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 Stotford, 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.

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.

The legal relationship between the fourth defendant, Essex County Council, “Essex”) the Education Authority responsible for Whitmore Junior School at which the claimant was a pupil, and the third defendant was indirect. She was an employee of the Second Defendant, an independent contractor to Essex.

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.

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”.

Essex, in its defence, accepted that a common law duty of care was owed to the claimant, which included obligations both to take such care as would be exercised by a reasonably careful parent and to take reasonable steps to ensure that independent contractors who were engaged to carry out tasks with, or in respect of, the pupils were reasonably competent to perform those tasks, and that the second defendant was an appropriate and reasonably competent contractor for those purposes. Essex, however, denied that it was vicariously liable for any want of care on the part of the life guard, or that the duty was non-delegable as alleged. Essex applied to strike out paragraph 20 of the re-amended particulars of claim, or, in the alternative, sought summary judgment in its favour on the issue of non-delegable duty.

Although many authorities in this jurisdiction hold that a school owes a duty to take such care of a pupil as would a reasonable careful parent, none has gone so far as to hold that a school owes a duty to ensure that reasonable care is taken by others of the child, such that it is responsible for any want of care on their part.

There is authority in this jurisdiction to the contrary. In Brown v. Nelson and others [1971] LGR 20, Mr Justice Nield considered the case of a pupil at an approved school, who went on an Outward Bound confidence course which included riding on a cable and pulley slung between two trees. From the cable hung a knotted rope. When the pupil got onto the rope, in order to ride, the cable snapped, and pulled the pupil down with it. He suffered serious injuries from which some years later he died. The Outward Bound confidence course was run by parties independent of the school. Nield J. said (at page 25):-

“What duty did the school authorities owe to the deceased? They were not the occupiers of the site or of the apparatus. They had, in my view, a general duty to take reasonable steps for the safety of those under their charge and use such care as would be exercised by a reasonably careful parent. Counsel tell me that there is no authority covering the situation where a school makes use of someone else’s equipment at premises other than the school premises. In my judgment, where a school must take their pupils to other premises, they discharge their duty of care if they know the premises and if the premises are apparently safe, and if they know that the premises are staffed by competent and careful persons. They further discharge their duty if they permit their pupils there to use equipment which is apparently safe and is under the control of competent and careful persons who supervise the use of such equipment. They do not in such circumstances have an obligation themselves to make an inspection.”

He cited Davie v. New Merton Board Mills Ltd [1959] AC604, per Lord Simonds at 626, to the effect that (under the law as it then stood) employers were not in breach of a duty to provide safe plant and equipment to their employees where they purchased tools from well-known makers which subsequently were revealed to be defective, but were entitled to assume they were proper for use; and Wilson v Tyneside Window Cleaning Company [1958] 2 Q.B. 110 per Pearce L.J. at 121, to the effect that if an employer sends an employee to work, “for instance in a respectable private house”, he could not be held negligent for not visiting the house himself “to see if the carpet in the hall created a trap”.

For the claimant, Mr. Turner QC argues that Brown v Nelson is of persuasive authority only. Times have moved on. Concepts of duty and negligence are not static, but responsive to current societal expectations. There is common law Commonwealth authority which supports the proposition that a school may owe a non-delegable duty of the kind alleged here: Commonwealth v Introvigne [1982] HCA 40. In reliance on that, the courts in New South Wales had held a pupil injured on an Outward Bound course organised by independent contractors (as was the pupil in Brown v Nelson) entitled to succeed against the State (the equivalent of an education authority) on the basis that the duty of care which the State owed him was non-delegable.

For Essex, Mr. Ford QC argues that the proposition that a school owes its pupils a non-delegable duty of care is novel. Such a duty has been held to exist only in well-defined circumstances – employers’ duties to take reasonable care for the safety of their workmen, dangerous operations on the highway, particularly hazardous operations, the escape of fire, and under the rule in Rylands v Fletcher. Brown v Nelson is good (and the only) authority, and though the principle it espoused may not have featured in any recorded case, it has certainly not been doubted in over 40 years. No doubt schools and others have arranged their affairs in reliance upon there being no duty of this nature resting on the school: the way to protect the interests of the pupils might be to insure against the negligence of independent contractors, but there was not even any separate duty to do this (though, as a feature of its duty to ensure that the contractor was reasonably competent, a duty is also alleged in the re-amended particulars of claim here, and is sufficiently controversial not to merit an application for strike-out as well).

I am not concerned here with either vicarious (secondary) or direct (primary) liability for respectively the negligence of another or a lack of due care in making arrangements for that other to discharge those functions which he later is argued to have performed negligently (Footnote: ¹). Auld L.J. in Majrowski v Guy's and St Thomas's NHS Trust [2005] EWCA Civ 251, [2005] Q.B. 848) said (at paragraphs 28 -29):

“First, vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming, in The Law of Torts, 9th ed (1998), pp 409-410, observed that this formula represents

"a compromise between two conflicting policies: on one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; on the other, a hesitation to foist any undue burden on a business enterprise".

Second, it has traditionally been regarded as taking two forms: first liability for an authorised or negligently permitted unlawful act of an employee in the course of employment; and, second, liability for an employee's unauthorised or not negligently permitted unlawful mode of doing an authorised act in the course of employment. Only the latter is truly vicarious liability; the former is primary liability.”

Although his judgment was appealed to the House of Lords (where it was affirmed) those passages do not appear to have been contentious.

As for independent contractors, the “general rule” was expressed in these terms by Lord Bridge of Harwich in D & F Estates Ltd v Church Comrs for England [1989] 1 AC 177 , 208:

“It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work. To this general rule there are certain well established exceptions or apparent exceptions. …….. But it has been rightly said that the so-called exceptions ‘are not true exceptions (at least so far as the theoretical nature of the employer's liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant’: see Clerk & Lindsell on Torts , 15th ed (1982), para 3–37, p 185.””

This general rule was recognised by Dyson L.J. as an important feature of our law of negligence in Farraj v King's Healthcare NHS Trust [2009] EWCA Civ 1203; [2010] 1 W.L.R. 2139. In his view, any departure from the general rule had to be justified on policy grounds. If the position were to be otherwise, there was a danger that the general rule would become the exception rather than the rule, and that is not the law.

Farraj is the most recent appellate examination of the principles (Footnote: ²) which might apply to identify the circumstances in which a non-delegable duty might arise, Dyson LJ observed at paragraph 69 that Professor Glanville Williams had in 1956 made the point, at pp 183–184 of his seminal article, “Liability for Independent Contractors” (1956) CLJ 180 that the cases offered no criteria distinguishing those duties which are non-delegable from those which are not. Lord Phillips MR in A (A Child) v Ministry of Defence [2004] EWCA Civ 641; [2005] Q.B. 183 noted that they have become little clearer since then. At paragraph 30, he concluded:

“In most cases it is possible to identify considerations of policy which led to the imposition of the duty. Thus, if a person intends to carry out a dangerous activity, he will owe a personal duty to ensure that reasonable care is exercised in relation to it because public policy requires that, whether he carries out the activity himself or engages another to do so, he should see that proper precautions are taken. In the field of employment, the courts have held that an employer owes a personal duty to ensure that reasonable care is taken for the safety of his workmen which he cannot delegate: see Wilsons and Clyde Coal Co Ltd v English [1938] AC 57. This decision has been said to have been motivated by the desire to escape the injustice flowing from the doctrine of common employment.”

The question whether modern conditions require that as a matter of policy a duty should for the first time be held to exist not only to take care oneself, or to be held responsible for the torts of one’s employees, but to secure that reasonable care is taken by contractors who are independent has been explored most frequently in this jurisdiction in the context of hospital and patient.

The development of the case law may be traced through to Farraj from the decision just over a century ago in Hillyer v The Governors of St Bartholomew's Hospital [1909] 2 KB 820, CA. Though the leading judgments differ in the views expressed, and the precise ratio is hard to determine, it seems to be that hospital governors were not liable for an error in treatment which might have been caused by nurses, who were undoubtedly employees of the hospital, but which might equally have been caused by a visiting consultant doctor (or nurses under his, rather than the hospital’s, direction) who was self-employed, because it could not on the facts be shown that the error was probably that of a servant of the hospital so as to render the hospital vicariously liable. The consultant was – as visiting doctors in those days often were – an independent contractor. The greater integration of such doctors into the day to day operations of hospitals, and the increasing view of the courts in the late 1940s and early 1950s that “control” was not necessarily a sufficient or suitable test to determine employment status and that one perhaps better test was integration in the employer’s undertaking (articulated in particular by Denning MR in Stevenson Jordan and Harrison v MacDonald and Evans [1952] 1 TLR 101, CA , and Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248) may possibly have influenced later decisions whether a doctor was a person for whose failures to take reasonable care the hospital in which he worked should shoulder legal responsibility. Thus in Gold v Essex County Council [1942] 2 KB 293, Cassidy v Ministry of Health [1951] 2 KB 343, Roe v Minister of Health [1954] 2 QB 66, although in each case the majority view was that the hospital concerned was liable vicariously for the negligence of its employees, a minority - Lord Greene M.R. in Gold, and Lord Denning L.J. (who had, as it happens, appeared as an advocate for Gold) in each of the two later cases - founded liability on a wider basis.

That wider basis is expressed in the following passage from the judgment of Lord Greene MR:

“The question which presents itself in the present case may, therefore, be formulated as follows: When a patient seeking free advice and treatment such as that given to the infant plaintiff knocks at the door of the defendant's hospital, what is he entitled to expect? He will find an organization which comprises consulting physicians and surgeons, presumably also house physicians and surgeons, a staff of nurses, equipment for administering Grenz ray treatment and a radiographer, Mead, employed to give that treatment. So far as consulting physicians and surgeons are concerned, clearly the nature of their work and the relationship in which they stand to the defendants precludes the drawing of an inference that the defendants undertake responsibility for their negligent acts………….”

As to nurses, however, he said:

“…if the nature of their employment, both as to its terms and as to the work performed, is what it usually is in such institutions I cannot myself see any sufficient ground for saying that the defendants do not undertake towards the patient the obligation of nursing him as distinct from the obligation of providing a skilful nurse. Nursing, it appears to me, is just what the patient is entitled to expect from the institution and the relationship of the nurses to the institution supports the inference that they are engaged to nurse the patients. In the case of a nursing home conducted for profit, a patient would be surprised to be told that the home does not undertake to nurse him. In the case of a voluntary hospital with the usual nursing staff his just expectation would surely be the same.”

In Cassidy, Denning L.J. put it thus, in yet wider terms (at p.362-3):

“It has been said, however, by no less an authority than Goddard, L.J., in Gold's case, that the liability for doctors on the permanent staff depends "on whether there is a contract of service and that must depend on the facts of any particular case". I venture to take a different view. I think it depends on this: Who employs the doctor or surgeon - is it the patient or the hospital authorities? If the patient himself selects and employs the doctor or surgeon, as in Hillyer's case, the hospital authorities are of course not liable for his negligence, because he is not employed by them. But where the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient.

I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.”

The coming into force of the National Health Service Act 1977 had the result that it became unnecessary for most purposes to decide whether a hospital was liable other than vicariously for the negligence of a doctor in his treatment of a patient. However, the “hospital” line of authority continued to have resonance, in particular in the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 , where at 740 he said:

“It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of staff is himself in breach of a separate duty of care owed by him to the plaintiff ... Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed directly by the authority to the plaintiff.”

In A (A Child) the claimant argued that the Ministry of Defence owed a duty to secure that treatment given to the wives of service personnel when giving birth in a German hospital was provided with reasonable care: i.e. a “non-delegable” duty. Both at first instance, and on appeal, the claim failed. Lord Phillips M.R. disapproved the only decision which thus far had recognised such a claim in the “hospital cases”, a decision in the Huddersfield County Court by HHJ Garner, in M v Calderdale and Kirklees Health Authority [1998] Lloyd's Rep Med 157, as not representing the current state of English law. He observed (at paragraph 52) that this decision:

“...seems to have been based on the observations of Lord Greene MR in Gold v Essex County Council [1942] 2 KB 293 and of Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343, although in neither instance did these represent the reasons for the decision of the majority of the court. ”

Unless, therefore, the court could be persuaded on policy grounds to recognise such a duty, he concluded that the claim must fail. The court remained unpersuaded.

Nor was the court in Farraj persuaded that it should hold that there was a non-delegable duty. A foetal sample was referred by the defendant hospital to an independent laboratory for analysis, to determine if the unborn child suffered from a genetically determined blood disorder. The claimant’s contention that the hospital was liable for the carelessness of the laboratory in its analysis and report (on the basis it owed a non-delegable duty of care to the parents) was rejected.

In giving judgment, Dyson L.J. was prepared to assume, without deciding, that a hospital generally owes a non-delegable duty to its patients to ensure that they are treated with skill and care regardless of the employment status of the person who is treating them. The rationale for this was that the hospital undertakes the care, supervision and control of its patients who are in special need of care. Patients are a vulnerable class of persons who place themselves in the care and under the control of a hospital and, as a result, the hospital assumes a particular responsibility for their well-being and safety. Thus (at para.88):

“To use the language of Caparo Industries plc v Dickman [1990] 2 AC 605 , 618 it is therefore fair just and reasonable that a hospital should owe such a duty of care to its patients in these circumstances. The claim in A (a Child)'s case failed, inter alia, because A's mother was not admitted to an MoD hospital and this court was not willing to extend the non-delegable duty of care to a duty to ensure that the treatment in a hospital over which the MoD had no control was carried out with due skill and care.”

Though he was prepared to determine the case on the assumption that hospitals could owe a non-delegable duty to patients, it did not in his view follow from the fact that Kings College Hospital was a hospital that the jurisprudence to be found in the hospital cases should be applied:

“The special duty that exists between a patient and a hospital arises because the hospital undertakes the care, supervision and control of persons who, as patients, are in special need of care. I accept that, if a patient who is admitted to hospital for treatment has tests carried out in the hospital, then the non-delegable duty of care, which for present purposes I am assuming to exist, would extend to the carrying out of the tests. But that is because the conducting of the tests is part of the treatment that the patient is receiving in the hospital. The claimants were not admitted to KCH for treatment. KCH has at all material times provided diagnostic and interpretative services for chorionic villus sampling. But there is no reason to suppose that these services could not have been provided by a specialist laboratory or testing house rather than a hospital. In my judgment, there is a significant difference between treating a patient who is admitted to hospital for that purpose and carrying out tests on samples which are provided by a person who is not a patient. Such tests are not necessarily carried out in a hospital”

The position of a pupil in a school is distinct from that patient in hospital. The vulnerability of the latter through illness causes the hospital to assume responsibility for his treatment. If school pupils are vulnerable, that is because they are young, and thereby less able to look out for themselves and respond to danger than the more experienced adult. The school does not assume responsibility for the health of its pupils as a matter of primary responsibility, but as secondary to its principal responsibility which is that of educating the child.

However, in Australia the courts have regarded the similarities between the relationship of hospitals and their patients on the one hand and school authorities with their pupils on the other as sufficient to justify in both cases finding that in some circumstances the hospital or the school authority will owe a duty not just to take reasonable care but to ensure that reasonable care is taken of patient and pupil respectively. Thus in Kondis v State Transport Authority (1984) 154 CLR 672, a decision of the High Court of Australia concerned with the duty of care owed by an employer to his employees, Mason J in the leading judgment, at pp 686-687, said:

“when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed ... The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them ... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.” (italics added)

In principle, on this approach, the non-delegable nature of the duty owes its character to the assumption of responsibility by the person subject to it for the very safety of a class of others which is the subject of the duty.

The Australian authorities have not always adopted the approach of looking at the position of the person owing the duty, but have allowed themselves to be influenced by a view of the position of the person to whom the duty is owed. Thus in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, in which the Court of Appeal of New South Wales had to consider the extent of the duty of care owed by a hospital, Samuels JA said this about the circumstances in which a non-delegable duty of care arises, at pp 605-606:

“It arises from a relationship which combines the dependence of A upon the reasonable care, skill and judgment of B with the legitimate expectation that B will ensure that those qualities will be exercised in protection of the person or property of A. A further policy decision will be required to determine when that peculiar combination of dependence and expectation ... exists. But it can scarcely be doubted that it does so in the case of the relationship between hospital and patient ... The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home.”

This is redolent of the approach articulated by Greene M.R. in Gold, when he looked to see what were the expectations of a patient entering the doors of the hospital. However, it is clear from Faraj that the proposed duty cannot be imposed on the basis of subjective expectation. Dyson L.J. clearly rejected this (at paragraph 90), adding “…the existence and scope of a duty of care cannot depend on the caprice of subjective expectations”. Like him, I regard the statements of Greene M.R. and Samuels J.A. as representing the court’s view of societal, not individual, expectation. If so, this seems to me to be ultimately a question of pure policy. If so, courts invited to recognise novel duties should move carefully and do so only incrementally, as recognised in Caparo v Dickman.

Do the Australian cases, and in particular the decision in Introvigne shed any further light on any principles by which non-delegable duty is to be determined? Mr. Turner places heavy reliance on it for the claimant. 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 of the flagpole. The truck – which weighed some 7 kilograms – was dislodged by the pupil swinging, fell, and caused severe head injuries. The injury was said to be caused by the negligent failure of school staff to supervise the pupils, as well as the state of the premises. The members of staff were employees of the state, yet the Commonwealth of Australia was sued. The High Court unanimously (Footnote: ³) held that (vicarious liability aside) a claim for a non-delegable duty arose. Mason J. said:

“There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J. in Ramsay v. Larsen (1964) 111 CLR, at p 28 (Footnote: ⁴). The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants.”

He turned to ask whether this principle applied to the Commonwealth, and concluded that:

“It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score”

Murphy J. expressed the same views concisely:

“ 1. The Commonwealth assumed the role of conducting a school; it is immaterial whether it was required to do so by Act of Parliament. It became liable for damage caused by any lack of reasonable care of the students or pupils placed in its care. In terms of the prevailing concepts of duty, the Commonwealth became fixed with certain non-delegable duties:

2.

(1). To take all reasonable care to provide suitable and safe premises. The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards.

3.

(2). To take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out.

4.

The Commonwealth also became vicariously liable to pupils and parents for the acts and omissions of the teaching and other staff (whether or not these were supplied by another entity or agency).

5.

The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent. A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of the classmates or other students. Injury occasionally occurs through foolish or sometimes malicious acts of other students. The school has the right to control what occurs at school, just as an employer has the right to control what happens in its undertaking. Where a student is injured by the negligence of another student (and perhaps by act or omission which if it were that of a person of full capacity would be negligent) without breach of personal duty by those conducting the school, and without act or omission by those for whom otherwise it is vicariously liable, it may be that the loss is best spread by treating the body conducting the school as vicariously liable just as an employer would be for its employee's acts or omissions; but it is unnecessary to decide this.

6.

In this case the damage to the plaintiff may be attributed to causes for which the Commonwealth is liable, unsafe premises and lack of supervision of the children. It is enough that Introvigne's injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground. As well, there was a failure to ensure that the system was carried out. The departure from the system by the teachers was understandable because of the death of the school principal, but this does not excuse the breach by the Commonwealth of this non-delegable duty.”

It may be too easy to move from these statements of principle to an assumption that a school authority would be legally responsible for any failure of care towards a pupil. This is not necessarily the case. The twin failings in Introvigne’s case were carefully delineated. The first was not a failure by someone deputed to supervise to exercise due care in and about that supervision, but a failure to provide for supervision at all (the background seems to have been one of a staff meeting, called to consider the death of the head teacher, which had the effect of taking away all staff who might otherwise have supervised, thus leaving pupils in the quadrangle to their own devices). It might be described as an organisational or “systems” failure – a failure to provide for supervision at all – akin to an employer’s duty to provide a safe system of work, a characteristic of which may be that systems are rarely attributable to the work of any individual alone, are compiled at leisure to cater for application in haste, and are quintessentially the responsibility of the employer.

The court in Introvigne drew heavily on the House of Lords decision in Carmarthenshire CC v Lewis [1955] A.C. 549. In that case, the unexplained fact that in the temporary absence of the teacher (who, on the evidence, was not negligent) it was possible for a child of four to wander from the school premises onto the highway, through a gate which was either open or very easy for him to open, was held to disclose negligence on the part of the school authority. The teacher with immediate supervisory duties over the child was acquitted of negligence – she was called to attend an emergency elsewhere. The duty held to be broken was one owed to a driver in the street outside the school, who in trying to avoid hitting the child drove into a telegraph post and sustained fatal injuries. Lord Reid, one of the four in the majority, said that it ought to have been anticipated by the appellants or their responsible officers that if a child was left unsupervised (albeit for good reason) it might well try to get out from the school grounds onto the street and that if it did a traffic accident was far from improbable. This would have been very easy to prevent by making it difficult or impossible for such a child to be able to open the gate from the yard on to the roadway. The failure to do so led to the accident. To fail to do so was to fail to take reasonable care (certainly, for the safety of the child, but also, it was held, for the driver who forseeably might be injured in striking or avoiding the child once in the road). Lord Keith encapsulated the decision as recorded in the headnote, to the effect that the facts suggested negligence on the part of someone for whom the authority was responsible, in his opening remarks:

“My Lords, if I find two toddlers, not quite four years of age, unaccompanied in a busy street, exposed to all the perils of a traffic accident, my natural reaction is to think that someone has been thoughtless, or careless, or negligent of their safety”

Mason J. in Introvigne thought that the decision in Lewis recognized that there was a liability on the part of the school authority for its failure to take reasonable steps to prevent the escape of the child on to the highway which proceeded on the footing that the duty was not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It was a duty to ensure that reasonable steps were taken for the safety of the children, a duty the performance of which could not be delegated. Brennan J. similarly found support for his concurring judgment in the words of Lords Goddard and Reid, at pages 561 and 563 respectively.

Despite the eminence of those Australian jurists, it might be thought that the words of the former, and indeed the speeches in Lewis as a whole, are entirely consistent with their finding being that the authority was vicariously liable for the actions of someone unknown (its “responsible officers” or some unidentified but negligent member of the school staff, according to the judgments). The expression “non-delegable” is not used, nor is the nature of the duty described in terms which identify it as a duty which is to be discharged by those independent of employment by the employer. Neither counsel before me referred to Lewis, let alone as a case in which non-delegable duties were considered, until invited after the close of argument to do so in written submission; nor was it referred to in Brown v Nelson or identified in subsequent English cases as having that effect. The head note to the report in the official law reports correctly (in my view) identifies the ratio as being that the presence of the child in the street required explanation if it were not to be concluded that some member of staff of the school had been at fault: no explanation being provided, that was therefore the conclusion.

I do not, therefore, consider that Lewis binds me to hold that the relationship of teacher and pupil gives rise to a non-delegable duty, let alone establishes the content of such a duty (those two aspects, the nature of the duty, and its precise formulation, or “content”, must necessarily be kept separate: as with any duty, it must connote an obligation on someone, whether individual or corporate, to do, or refrain from doing, something clearly identifiable in relation to another such that (in an injury case) it can be said that the injury suffered is that type of harm from which it was the duty of that someone to hold the victim harmless). I note in passing that the duty as pleaded in the case before me is devoid of necessary content.

The High Court of Australia in New South Wales v Lepore [2003] HCA 4 revisited questions of non-delegable duties owed by school authorities to pupils in the context of determining claims for serious abuse. Although the judgments generally cautioned against viewing the non-delegable nature of the duty as so wide in scope that it resulted in liability if any harm should befall a pupil, rather than only if there were a failure of reasonable care to prevent such harm, (emphasising that it was necessary to address the content of the alleged duty as well as its nature) they recognised that in Australian law such a duty was well established. The decision in Introvigne was not challenged before the court. However, in the particular circumstances of Lepore, the High Court declined (by a majority) to hold that there was a non-delegable duty. It upheld an appeal against the Court of Appeal in Queensland which had (by a majority of 2-1) held such a duty could be established, whilst rejecting an appeal from the unanimous decision that there was no such duty, which had been reached in a case of alleged child abuse by the Court of Appeal in New South Wales, to whom the reasoning of the minority Queensland judge had appealed. However, both majority and minority agreed on much of basic principle. This found its widest expression in the words of McHugh J. (in the minority: he alone would have found non-delegable duties in the particular circumstances of Lepore) (at para.136):

“…a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil…

(142)

…The duty arises on the enrolment of the child. It is not confined to school hours or to the commencement of the teachers' hours of employment at the school. If the authority permits a pupil to be in the school grounds before the hours during which teachers are on duty, the authority will be liable if the pupil is injured through lack of reasonable supervision. In Geyer v Downs this Court held that the education authority was liable for injuries suffered by a pupil playing in the school grounds at about 8.45am although teachers at the school were not required to be on duty at that time…

143.

The duty extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil's own conduct The measure of the duty is not that which could be expected of a careful parent…Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to "a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children".

The view taken by the majority was more restrictive of the duties of a school authority: see, eg, per Callian J. at para. 340:

“Education authorities do not owe to children for whose education they are responsible (absent relevant contractual provision to the contrary) a particular or unique non-delegable duty of care, in practical terms, giving rise to absolute liability. There is no doubt that the ordinary standard of care in the case of such authorities is a very high one. Their duties include the engagement of reliable, and carefully screened, properly trained employees, and the provision: of suitable premises; an adequate system for the monitoring of employees; and, I would think, because, regrettably, the incidence of sexual abuse seems to have been more common than had previously been thought, an efficient system for the prevention and detection of misconduct of that kind. In saying what I have, I do not intend to state comprehensively a catalogue of the duties to which the relationship of education authority and pupil may give rise. But I do agree with the Chief Justice that absent fault on the part of an education authority, it will not be personally liable in situations of the kind with which these cases are concerned”.

Nonetheless, Lepore treated it as settled law that some duties owed by schools to their pupils were, depending on their precise content, non-delegable. In discussing the applicable principles, inevitably the court discussed the differences from, similarities and overlap with vicarious liability (one central concern of the majority being that recognition of a general non-delegable duty would leave no space within which orthodox principles of vicarious liability could operate (Footnote: ⁵)). Kirby J. complained (at 301), “Vicarious liability in the law of torts is, above all, a subject fashioned by judges at different times, holding different ideas about its justification and social purposes, "or no idea at all"…”. All the more so must this be true of non-delegable duty, which is also a liability to which a defendant is exposed by the acts of others, because (in contrast with he who is vicariously liable) he has no employment or agency relationship with the person who commits the wrong, and hence may exercise no control except over the wrongdoer except by the terms of contract, or not even that. The person whose acts may make the defendant liable may not even be himself committing a tort (cf. vicarious liability).

It was in part in reliance on those Australian authorities, despite their recognition that the approach in that jurisdiction goes beyond that currently adopted in the UK, that Lady Paton, a judge with particular expertise in personal injury cases, refused in AM v. Hendron & Ors [2005] ScotCS CSOH_121 (13 September 2005) to dismiss a case in advance of trial on the grounds of relevancy as had been urged by the Scottish Education Department (“SED”), which was one of several defendants to a claim in respect of serious abuse 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 financial redress for his suffering. Lady Paton accepted that this was sufficiently arguable to justify permitting him to proceed to trial and lead evidence. Her reasoning (at paras. 112-119) is encapsulated by the following:

“[113] In the present case, I have ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215, the developing jurisprudence relating to the concept of a non-delegable duty of care in certain contexts, and underlying policy reasons, make it necessary for the courts to recognise the existence of a common law non-delegable duty of care on the part of a government body such as that represented by the eighteenth defender in respect of children allocated by the government to government-created residential schools such as St. Ninian's. Such a non-delegable duty of care may be particularly relevant where it is not possible to establish more traditional liability such as direct or vicarious liability. In the context of a non-delegable duty of care, liability may arise even where there has been no fault on the part of the government body.

[114] In reaching that conclusion, I have not overlooked the concerns expressed by Gleeson C.J., Callinan J., and Gummow and Hayne J.J. in Lepore, when they point out that an unrestricted development of the concept of a non-delegable duty of care could result in an unacceptable extension of liability. I also accept the force of Lord Bridge's observations in D & F Estates Ltd v Church Commissioners for England [1989] 1 A.C. 177, at pages 210D-E. However it seems to me that, in the context of abuse by staff of inmates of residential establishments, those concerns and observations are met and answered by the guidelines laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] A.C.215”

She further added that:

“…the underlying policy reasons referred to in paragraph [113] above include a perception that it is unacceptable for a government body responsible for a system of residential schools to have no liability for abuse inflicted on pupils by staff whose task it is to care for, supervise, or instruct those pupils, on the technical ground that certain functions (such as entering into contracts of employment with members of staff) have been delegated to others such as unpaid members of the community performing what might be seen as civic duties. If the obvious link of employer-employee is not clearly available in relation to the government body, then the pupil is left to attempt to recover damages in respect of injuries suffered at the hands of those placed in authority over him, from others fulfilling certain functions within the system. There is no reason in principle or precedent why a government body should in such circumstances be free of liability for abuse in a situation such as is envisaged in Lister - that is, where there is a close connection between the work which the staff were engaged to perform and the type of abuse inflicted. In such circumstances, the concept of a non-delegable duty of care at common law is in my view appropriate, and would be fair, just and reasonable to impose. The medical context offers a useful parallel, in particular the dicta of Lord Denning in Cassidy v Ministry of Health [1951] 2 K.B. 343; the observations of Lord Phillips M.R. at paragraph 63 of A v Ministry of Defence [2004] EWCA Civ 641; and the views of Mason J. in Introvigne, referred to in paragraphs [23] and [25] of New South Wales v Lepore.”

I was not referred in oral argument to this case, but became aware of it later, and given its context have had regard to it (Footnote: ⁶). Before doing so, however, I invited both counsel to make further submissions upon it and other authorities which came to my notice, and they both addressed those cases in written submissions.

Mr.Turner QC in those further submissions identified a further, post-Lepore, Australian decision supportive of his case. In Fitzgerald v. Hill & Ors [2008] QCA 283, 8 year old Sean was one of a group of 10 – 12 children who were taken on a run at dusk alongside and across a busy road by their instructor, one Dobie, who worked for one Ivanov as an Rhee Tae Kwon Do instructor. The trial judge regarded this as inherently dangerous. The boy was struck by a car which was driven too fast. No finding was made as to vicarious liability, or the precise work relationship between Ivanov and Dobie, but the judge held that Ivanov, as owner of the academy Sean was attending when he was injured as a result of Mr Dobie's negligence, owed Sean a duty of care in the performance of activities associated with the classes. By failing to ensure that reasonable care was taken in the performance of those activities he had breached that duty. The Queensland Court of Appeal (McMurdo P., Holmes and Mackenzie JJ.A) rejected an appeal against these findings (see in particular per McMurdo P. at paras. 58, 67, and 72-8).

Since Lord Phillips in A (a Child) (and Dyson LJ in Faraj) thought it was only if the court could be persuaded on policy grounds to recognise such a duty, in the particular circumstances of a case, I must ask what principles can be identified, insofar as “policy” can be expressed in terms of principle, to establish the existence of a non-delegable duty, and, if it should exist, its scope, to see if there is any tenable argument that the claimant’s case does not seek too much. I must ask not only if a non-delegable duty could in some circumstances be justified as between a school and its pupils, but whether in the particular circumstances of this case policy arguably dictates that it should be.

The search for a coherent formulation of policy, to provide a coherent view of the “justifications and social purposes” of non-delegable duty to which Kirby J. referred in Lepore is elusive. There is limited scope for them, since it is recognised that the courts must adopt an approach which is restrictive of the circumstances in which a non-delegable duty is held to arise, in particular because (though stopping short of being an insurance liability against harm, howsoever caused) it goes further than does even vicarious liability in imposing a requirement to answer financially for wrong which is primarily the doing of another. It might therefore be expected that the policy considerations which justify the imposition of vicarious liability would all the more emphatically need to be present if liability of a non-delegable form is to extend in a given case beyond it. This requires, if briefly, the identification of those policy reasons which arguably justify vicarious liability.

Vicarious liability may be explained, as it was in the Canadian Supreme Court case of Bazely v. Curry (1999) 174 DLR (4th) 45 by MacLachlan CJ as arising out of twin principles, first that it is just that an enterprise which creates risk by its operations should pay if those risks materialise (“enterprise risk”), and second as a matter of policy to encourage the employer to exercise the power of control which is inherent in and essential to any contract of employment to minimise any potential harm so arising (“deterrence”).

The House of Lords in Lister v Hesley Hall (which was significantly persuaded by Bazley v Curry) regarded the test of “sufficiently close connection with the employment” (which it held appropriate to determine the scope within which an employer would be vicariously liable) as taking these two considerations into account. It effected 'a compromise between two conflicting policies: on the one hand, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; on the other, a hesitation to foist any undue burden on a business enterprise'. However, other policy emphases are also apparent in the speeches. Though Lord Clyde's approach, at paras 37–42, was to gauge the sufficiency of the connection by asking whether the wrongful acts, in a broad sense, should be regarded as within the sphere or scope of the employment so as to be ways of carrying out the work authorised by the employer: this therefore would draw a link between the interests of the employer, and the act (essentially, enterprise risk), Lord Millett's approach was broader. He said that vicarious liability was a species of strict liability, best understood as ‘a loss distribution device’. This echoes the policy concept that he who has the deeper pockets should suffer the impact of a loss. Lord Hobhouse of Woodborough however focused on the notion of delegation or entrustment, namely that an employer is vicariously liable for the wrongful act of its employee where it has ‘entrusted’ a duty to an employee who, by his wrongful act, has failed to perform it. This echoes the approach of Greene MR and Solomon JA in their respective jurisdictions to non-delegable duty.

Though itself essentially an illustration of the applicability of the principles in Introvigne, Fitzgerald v Hill does contain some useful discussion of underlying principle. At paragraph 58 is said:

“In Burnie Port Authority v General Jones Pty Ltd. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, in a joint judgment, approved Mason J's observations in Kondis set out above. Their Honours labelled the element common to situations where non-delegable duties arise as "the central element of control", adding: "Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person." (footnotes omitted)

At paragraph 67, the court identified that:

“Factors which support the existence of the duty include whether the relationship is one where the defendant has a high degree of control, the claimant is vulnerable, or the claimant has a special dependence on the defendant. The categories of situations where a non-delegable duty of care is owed are not closed, but courts should exercise care in extending them”

Other considerations underlying liability for the acts of others where one is not oneself at fault have been held in the case-law to be that the enterprise materially increases the risk of injury, and the enterprise or its proprietor should therefore pay in preference to he who suffers the impact of the materialising risk. This is “material increase of the risk” rather than “enterprise risk”, for the basis for the latter is that he who takes the benefit (of acts done in his name) should suffer the burden, and this is not necessarily the same as operating an undertaking in such a way as to add to pre-existing risks of injury. Turning to the present case, “material increase in risk” cannot sensibly apply, for if a professional who is not an employee of the undertaking is contracted to provide services for it or its consumers in respect of which he is a specialist, then always assuming the undertaking is careful in its choice of professional, the risk from provision of those services should materially reduce: if for example, NHS aside, a GP’s practice were to contract with a specialist orthopaedic surgeon to conduct surgery on the bones of a patient, rather than have the operation performed by the GP himself or by a generalist, however great and careful the efforts of the GP would have been, the risk would reduce by reason of the appointment, always supposing the surgeon to have been responsibly selected. But though “material increase” may not apply, there is still room for “enterprise risk”.

The most obvious of these principles informative of policy which might be applicable in the present case to support a non-delegable duty are thus “assumption of duty” (or, per Lord Hobhouse, “entrustment”), “enterprise risk”, and “deterrence”. The latter depends critically upon the ability of the proposed defendant to control the act which results in damage. Vicarious liability is restricted to those relationships in which the principal controls the actor (as where he is an employee, control being a necessary aspect of the employment relationship). There is much less scope, if any, for deterring the principal where he has no such control: and the more removed the actor is in from the undertaking which it is sought to hold liable, the less this can be a legitimate policy consideration. Similarly, there is less scope for societal expectations of assumption of responsibility the further removed, an actor is, or the greater his independence or separation from, the undertaking; and “enterprise risk” too has lessening force. If the Australian High Court’s view of the centrality of control is adopted as critical to non-delegable duty, too, then these observations hold good in that context as well as in determining vicarious liability.

The policy considerations which might argue in favour of a duty must be balanced against those which would deny a duty. Here, in argument before me, Mr. Turner QC said he did not contend that if a child went abroad under the aegis of a school (perhaps on some Gap or similar scheme, or on a foreign exchange) to some foreign location where he was injured, perhaps through the fault of the premises, the school authority in the UK would owe him a duty which was non-delegable. As it happened, though I was not referred directly to it, the Court of Appeal decision in Cook v Square D [1992] ICR 262 supports this. Mr Cook was employed by Square D Ltd as a field service electronics engineer. In that position he was sent to Saudi Arabia for two months to premises by other companies. In attempting whilst abroad to avoid holes in the computer control room floor, where tiles had been lifted, Mr Cook slipped and his foot became jammed, resulting in injuries to his knee. A finding of liability in his favour at first instance was reversed on appeal. It was casting too high a responsibility on the home-based employers to hold them responsible for the daily events of a site in Saudi Arabia occupied by a third party. The duty on employers to take all reasonable steps to ensure the safety of employees in the course of their employment applied whether the premises where an employee is directed to work were occupied by the employers themselves or by a third party, and could not be delegated. Where an employee was injured on premises in the occupation of a third party, the extent of the employers' responsibility depended upon what was reasonable in all the circumstances. Considerations to be taken into account included the place where the work was to be done, the nature of the building on the site concerned (if there is a building), the experience of the employee who is despatched to work at such a site, and the nature of the work he is required to carry out, the degree of control that the employer can reasonably exercise in the circumstances, and the employers' own knowledge of the defective state of the premises. In that case, there was no evidence to show that the accident was caused by any breach of duty on the part of the employers. They were satisfied that the site occupiers and the general contractors were both reliable companies, aware of their responsibility for the safety of workers on the site. There was no duty on the employers to advise the occupiers of the need to take precautions against the kind of hazard encountered in this case.

Assume as an example that a school organised a class outing to, say, a zoo (as part of its regular schedule of important educational visits). No-one would sensibly argue that if the bus booked with a local coach firm (who there was no reason think was anything other than reliable) crashed due to the negligence of the driver, the school would be responsible for his lack of due care in driving or the firm’s carelessness in employing him to drive; or that if one of the children were bitten by an animal, due to the negligence of the zoo-keeper’s staff, despite reasonably careful supervision being exercised by a teacher (not herself an expert in animal behaviour), that the school would be found to be liable (in addition to zoo and staff member); or if a child bit into an ice-cream sold at the zoo, and cut its mouth on a piece of glass negligently contained within the ice-cream bar, the school would be liable for carelessness in its manufacture. Yet on each occasion, it might be claimed that the trip was within the general curriculum, the safety on the outing of the child concerned had been entrusted to the school by the parent, that “enterprise risk” was involved (the opportunity for the injury was after all provided in each case by the visit, arranged for as part of the educational undertaking), and that “deterrence” might have a part to play, at least in the first two cases (it might, for instance, argue in the first case that an education authority ought to organise its own educational transport rather than reply on outside contractors, for the risks of the former could more easily be controlled in-house).

In each case, however, the activity of the party most directly at fault is incidental to that of the school, and takes place off the premises. Bus driving, zoo-keeping, and ice-cream manufacture are not inherently school activities (even if the zoo provides educational lectures, or the bus driver a tour commentary as he drives). The example Mr. Turner gives of the foreign school not being covered by a duty, despite its activity being educational, consistent with Cook v Square D (the strength of which as precedent derives from the fact that the duty of an employer is accepted to be non-delegable, in a way the duty of a school is not), is of activity off the premises, away from the areas perhaps most likely to give rise to enterprise risk, and certainly limiting the applicability of control and with it deterrence.

The cases referred to by the parties, both orally and in their written submissions, have referred to the policy reasons identified above both for and against holding a duty to be non-delegable. To search for a unifying principle of principles of policy may be illusory. As the Canadian Supreme Court observed in K.L.B. v. British Columbia [2003] 2 S.C.R. 403:

“31.

It may be that there is no single common law concept of non-delegable duty.  Instead, the phrase seems to have been used to describe a number of situations in which special, non-delegable duties arise.  If this is correct, then rather than seeking to state the doctrine in terms of a single principle, we should look to the different situations in which such duties have been found — an approach consonant with the traditional methods of the common law.  In Lewis (Guardian ad litem of) v. British Columbia, 1997 CanLII 304 (SCC), [1997] 3 S.C.R. 1145, at para. 20, Cory J. suggested that these different situations comprise a “spectrum of liability”, and that “[w]ithin that spectrum there are a variety of legal obligations which may, depending on the circumstances, lead to a principal’s liability for the negligence of an independent contractor.”

This approach is resonant of the incremental approach by which the law of negligence may be developed, where it is just and reasonable to do so. Such an incremental approach necessarily looks to the recent history of the common law.

As for the analogy with hospitals, no case (save M v Kirklees, which was regarded by the Court of Appeal in A (a Child) as wrongly decided) has yet held on its facts that a hospital owes a non-delegable duty of care to a patient. Two Court of Appeal authorities, binding on this court, have concluded first that a former provider of hospital treatment (The MOD) for patients (servicemen and their families) which assured servicemen that proper medical care and treatment would be supplied to them whilst on service abroad was under no duty to ensure that reasonable care was taken in their treatment by German doctors in a German hospital (A (a child)); and second that a hospital does not owe a duty to make sure that diagnostic services performed off-site by subcontractors are provided with reasonable care for patients in its charge (Farraj). One of those (A (a child)) held that where an NHS Authority makes arrangements for a patient entrusted to its care to have treatment in France it, likewise, does not owe such a duty to that patient (the decision to that effect in M v. Kirklees, being disapproved). Although Lord Phillips in A (a Child) and possibly Dyson LJ in Farraj have recognised that in some circumstances the Australian approach may have its attractions, they rejected it in those cases. These two Court of Appeal authorities have treated the question whether a duty is owed as determinable by policy. As to that, the “Australian Approach” urged by Mr Turner has not been adopted in the U.K. The adoption of a non-delegable duty is likely to constitute a wide expansion of liability. As to that, the starting point must be that any extension must be viewed restrictively.

Turning from the “hospital cases” to schools, the decision in Brown v Nelson has not been criticised. In those cases involving claims by school pupils since (such as those complaining of an injury to an eye consequent upon the free availability and unsupervised use of pointed scissors, or that of a schoolboy seriously injured in playing rugby) the concept of non-delegable duty as such has not featured. Older cases at Court of Appeal level arguably preclude it – in Camkin v Bishop [1941] 2 All ER 713, the Court considered an appeal from a finding of liability against a school where boys from that school were allowed to help a farmer by working in a field, unsupervised, and one of them was struck so badly in the eye by a clod of earth thrown amongst them during horseplay that his eye was lost. A claim against the headmaster that he was under a duty to arrange for the supervision of the boys whilst they were doing the work was rejected in trenchant terms, as when Goddard LJ observed (715) that he had “some difficulty in appreciating the view” taken by the first instance judge, against whose decision an appeal was allowed:

“He found that the defendant failed in his duty by reason of a lack of supervision. If this means anything, it must mean that it is the duty of a headmaster to see that boys are always under supervision, not only while at work but also at play, or when they are free, because at any time they may get into mischief. I should like to hear the views of the boys themselves on this proposition….”

Scott LJ contemplated that the incident might have happened in many circumstances, which included one where a supervising master had been temporarily absent, and where the two boys who quarelled might have done so in his absence: there would be no liability.

If this is right, it follows that even if a school had a duty to provide for supervision, it would take no responsibility for a failure (albeit temporary) of that supervision. It would be odd if a common law which did not impose on a school a duty to supervise at all would impose a liability for a failure to take reasonable care in and about that supervision, where it was not even provided by a master employed by and part of the school but by an outsider. Though the case is not direct authority against a non-delegable duty, in the context of pupil and school, it tends against the recognition of one.

Although Mr. Turner QC argues that in Camkin the ratio was that no supervision was required of older children working in fields, and it was made clear that a different approach might apply in other environments (he suggests an example would be where younger children are in a swimming pool), at the highest this is an argument that accepts there is no general non-delegable duty to supervise, but at one which arises only in situations of particular danger. Mr. Ford QC’s emphasis is upon the decision itself, which he submits is to the effect that the court concluded that the headmaster was entitled to leave the supervision of the boys in the hands of the farmer, if anyone: it left no space for a non-delegable duty.

To recognise a duty as arguable in the present case would thus be that marked extension of the common law which policy tends against. Even greater caution should apply to recognition of new categories of non-delegable duty than does to an expansion of negligence liability, since to recognise an intermediate category between strict insurance against injury and negligence itself is to suggest that the scope of the latter, though augmented by the principles of vicarious liability, is insufficient, even if gently extended, to meet the demands of that which is fair just and reasonable in the circumstances. If non-delegable liability to a hospital patient has yet to be established whilst he is within the four walls of the infirmary, and denied where work important to treatment (Farraj) or treatment itself (M v Kirklees) is carried out in some other place, not under the direct control of the health authority, though arrangements for the work or treatment have been made by it, then to suggest that an education authority should be liable to a pupil who is injured outside the school itself, where arrangements have been made with those who are recognised as specialist professionals to provide the activity, and where the safety and health of the school pupil though of great importance is not the primary raison d’etre of the school’s activities, potentially asks too much. There is no decided case upon which such a case could be said to be incremental.

Accordingly, argument by analogy with decided case-law does not advance the claimant’s arguments.

The duty of the school in the present case is, albeit unhelpfully, expressed to be “in the capacity loco parentis”. However, applying it: if a reasonably careful parent would entrust his child to a reputable coach company, or feel safe relying on the (after all, expert) skills of the zoo-keeper, would be as ignorant as any of the processes by which an ice-cream bar was manufactured, and would be prepared to permit his child to be abroad on an educational exchange (all of which I consider he unarguably could do without any breach of parental duty on his part), then it is reasonable to suppose he would confidently entrust his child to a public swimming pool under the supervision of a reasonably carefully chosen lifeguard and in the presence of a reasonably careful swimming teacher. To argue that the school should be responsible for any failure of the lifeguard to exercise due care would therefore be to extend the duty it owes beyond that of the parent to which the claim suggests it is to be restricted. That is unacceptable.

The situations in which a school has in Australia been held to be liable under a non-delegable duty are closely analogous to the situations which might, but for there being no formal employment status, have given rise to vicarious liability. The relationship of Commonwealth to teacher in Introvigne was not that of employer-employee, because of the statutory provisions relating to employment by a state: but the teachers, and their responsibilities, were wholly integrated within the scope of the Commonwealth’s undertaking. Similarly, the relationship of SED and monks in charge of an approved school. The “hospital cases” were decided in favour of a patient on the ground of vicarious liability: but the exposition of the alternative ground contemplated that the medical staff concerned were an integral part of the hospital’s undertaking at the very hospital itself (and, as I have observed, may have owed something to the “integration” test then particularly in vogue for determining employment status.) Assuming the test to be relevant, the necessary degree of integration may arguably be present where a supply teacher is contracted through an independent agency to teach a lesson inside the school, in a situation indistinguishable (but for the private contractual arrangements) from that of an employed full time teacher teaching a similar lesson to the same pupils in the same classroom. The present case is however well removed from that. Nield J.’s words in Brown cited above are apposite in drawing a distinction between work on the premises and off them, and between the duties of staff within and under the control of the school itself, and others: “.. where a school must take their pupils to other premises, they discharge their duty of care if they know the premises and if the premises are apparently safe, and if they know that the premises are staffed by competent and careful persons.”

The basis on which outside contractors are employed to provide specialist services outside the building which houses an undertaking is deliberately to provide a distance between the undertaking and its contractor. Policy would argue that part of this distance is the deliberate separation of spheres of liability, but that on the other hand commensurately greater care is to be taken in the selection of such a contractor, and careful definition of the terms under which it will operate, at least so far as the objects of the undertaking’s own responsibilities are concerned (just as a parent will often carefully select a school).

Mr. Turner QC argues that swimming is expressly provided for by the national curriculum. It more often than not has to be provided off school premises. Here there was no school visit or exchange trip: but a regular lesson, integral to the business of the school. I can however see nothing in this which would affect the applicability of the principles which (arguably) may operate to provide for a non-delegable duty. I do not have evidence as to the reasons why the school chose to contract out, but this is no basis to accede to Mr. Turner’s fall-back position that I should defer a decision as to this part of the case until all the evidence has been heard. If it is clear on the basis of what is pleaded that the case has no reasonable prospect of success, I should not duck the issue.

Given (a) the Australian authorities, (b) the decision in Hendron and (c) that the “categories of negligence are never closed”, (d) recognising as did Lord Phillips in A (a Child) that societal expectations move on (e) that the authors of Clerk & Lindsell appear able to state with conviction that an hospital owes a non-delegable duty of care to see that reasonable care is taken of a patient, and (f) that there may be said objectively to be some parallel between a hospital authority’s assumption of care for a vulnerable patient needing medical or nursing attention within its doors and that of a school entrusted by parents with the education and day to day control and safeguarding of their child, at least whilst on school premises, I could not conclude that in all and any circumstances the proposition that a school authority owes a pupil a duty to ensure that reasonable care is taken of him or her whilst on school premises is unarguable.

However, so to recognise does not answer the case before me. The question is whether it is arguable that the law as it currently stands recognises such a duty, of the content claimed, in the circumstances of this case.

I have come to the conclusion that the claim that the Defendant school authority owed a non-delegable duty to the claimant in the pleaded circumstances of this case is bound to fail. This is because I do not accept that any court could reasonably be persuaded on policy grounds to uphold such a duty (approaching it as did Lord Phillips in A (a Child). In summary:

For those reasons, this application by the Defendant succeeds. I invite counsel to agree between themselves the precise form of order which should follow.