Supreme Court closes another vicarious liability loophole: Woodland V Swimming Teachers Association

On 23 October 2013 the Supreme Court closed another vicarious liability loophole when it handed down its judgment in Woodland. The respondent education authority was set to escape any potential liability for a negligently conducted swimming lesson simply because the lesson had been carried out by an independent contractor, rather than an employee. For this reason, both parties agreed that the respondent could not be vicariously liable, yet to deny the claimant any possibility of seeking compensation from the authority for the incident on that basis would have been unpalatable. Accordingly, the court kept the education authority in the frame by endorsing and expounding a concept little-used in English law but supported by some powerful dicta: the non-delegable duty of care. In contrast to vicarious liability, the non-delegable duty is a personal one, which requires a defendant not merely to take reasonable care, but to ensure that reasonable care is taken; a task may be delegated to an independent contractor, but the duty may not. The Supreme Court explained that a non-delegable duty would arise where: (1) the claimant is especially vulnerable or dependent on the defendant's protection against risk of injury; (2) there is an antecedent relationship between the two which puts the claimant in the defendant's custody, charge or care and from which it is possible to say that the defendant has assumed a duty to ensure care is taken; (3) the claimant has no control over how the defendant chooses to perform its obligations; (4) the defendant has delegated a function which is an integral part of the positive duty it assumed, such that the delegate now exercises custody, charge or care over the claimant on the defendant's behalf; and (5) the defendant has delegated its duty to a third party, who has performed it negligently. Reversing the decision of the lower courts and remitting the case for trial, the Supreme Court unanimously decided that the education authority owed the claimant a non-delegable duty, which could give rise to liability for any negligence in this case. Following Woodland, it is now clear that, when exercising their core functions, schools, hospitals and other similar organisations will owe personal, non-delegable duties towards those persons entrusted into their custody, charge or care. In such cases, claimants who suffer loss by reason of the negligent performance of the defendant's core functions will be entitled to seek redress from the defendant by an alternative route, where they cannot establish vicarious liability. Against the backdrop of a climate where outsourcing is now common place, this judgment is a particularly pertinent one and its practical implications will need to be factored into operational decision-making. However, any objections from potential defendants are easily outweighed by the policy justifications for closing this particular loophole.