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Petitioner: WOODLAND VS Respondent: ESSEX COUNTY COUNCIL
Court Name: Supreme Court of United Kingdom Judge(s): Lady Hale, Lord Wilson, Lord Toulson, Lord Clarke, Lord Sumption Title: WOODLAND vs ESSEX COUNTY COUNCIL Case No.: On appeal from [2012] EWCA Civ 239 Date of Judgment:2013-10-23 Reported As: 2014 SCMR 258 Result: Appeal allowed
JUDGMENT
JUDGMENT LORD SUMPTION (with whom Lord Clarke, Lord Wilson and Lord Toulson agree) 1. This appeal arises from a tragic incident on 5 July 2000 at Gloucester Park swimming pool in Basildon, Essex. The Appellant, then aged ten, was a pupil at Whitmore Junior School, for which the Respondent education authority was responsible. The national curriculum, in its then form, included physical training of a number of alternative kinds, one of which was swimming, and pupils at the school had swimming lessons in normal school hours. What appears to have happened was that the Appellant and other members of her class went to the pool, accompanied by a class teacher, Mrs Holt. At the pool, the children were divided into groups. The group to which the Appellant was assigned was taught by a swimming teacher, Ms. Burlinson, with a lifeguard, Ms Maxwell, in attendance. At some point, the Appellant got into difficulties, and was found (in the judge's words) "hanging vertically in the water." She was resuscitated, but suffered a serious hypoxic brain injury. The Appellant alleges (among other things) that her injuries were due to the negligence of Ms Burlinson and Ms Maxwell. Neither of them was employed by the education authority. Their services had been provided to the authority by Mrs Beryl Stopford. She was an independent contractor who carried on an unincorporated business under the name of "Direct Swimming Services", and had contracted with the education authority to provide swimming lessons to its pupils. 2. The issue on the present appeal arises out of an allegation in the Appellants' pleadings, that the Council owed her a "non-delegable duty of care", with the result that it is liable at law for any negligence on the part of Ms Burlinson or Ms Maxwell. Langstaff J struck it out on the ground that on the pleaded facts the education authority could not be said to have owed a "non-delegable duty of care". The Court of Appeal affirmed his decision by a majority (Tomlinson and Kitchin LJJ, Laws LJ
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dissenting). The appeal provides a useful occasion for reviewing the law on what have been called "non-delegable duties of care". But it must be very doubtful whether deciding such a point on the pleadings was really in the interests of these parties or of the efficient conduct of their litigation. The pleadings are unsatisfactory. There are no findings of fact and almost everything is disputed. A decision of the point presently before us will not be decisive of the litigation either way, because there are other bases of claim independent of it. The point has taken more than two years to reach this stage, during which, if the allegation had been allowed to go to trial, it would almost certainly have been decided by now. As it is, regardless of the outcome of this appeal it will now have to go back to the High Court to find the relevant facts. ' Non-delegable duties 3. In principle, liability in tort depends upon proof of a personal breach of duty. To that principle, there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other: Majrowski v Guy's and St Thomas's NHS Hospital Trust [2007] 1 AC 224. The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but Stand in a relationship which is sufficiently analogous to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case. 4. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none. On the footing that the local authority was not vicariously liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was the scope of the authority's duty to pupils in its care. Was it a duty to take reasonable care in the performance of the functions entrusted to it, so far as it performed those functions itself, through its own employees? Or was it a duty to procure that reasonable care was taken in their performance by whomever it might get to perform them? On either view, any liability of the education authority for breach of it is personal, not vicarious. 5. The law of negligence is generally fault-based. Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do. This is because, as Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in Lewis v British Columbia [1997] 3 SCR 1145 at para 17, a common law duty of care "does not usually demand compliance with a specific obligation. It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care." The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others. 6. English law has long recognised that non-delegable duties exist, but it does not have a single theory to explain when or why. There are, however, two broad categories of case in which such a duty has been held to arise. The first is a large, varied and anomalous class of cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of his work. The early cases are concerned with the creation of hazards in a public place, generally in circumstances which apart from statutory authority would constitute a public nuisance: see Pickard v Smith (1861) 10 CB (NS) 470 (which appears to be the first reported case of a non-delegable duty), Penny v Wimbledon Urban District Council [1898] 2 QB 212 and Holliday v National Telephone Company [1899] 2 QB 392. In Honeywill
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and Stein Ltd v Larkin Brothers (London's Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly to "extra-hazardous" operations generally. Many of these decisions are founded on arbitrary distinctions between ordinary and extraordinary hazards which may be ripe for re-examination. Their justification, if there is one, should probably be found in a special public policy for operations involving exceptional danger to the public. But their difficulties do not need to be considered further on these appeals, because teaching children to swim, while it unquestionably involves risks and calls for precautions, is not is not on any view an "extra- hazardous" activity. It can be perfectly satisfactorily analysed by reference to ordinary standards of care. 7. The second category of non-delegable duty is, however, directly in point. It comprises cases where the common law imposes a duty upcn the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. The contracting party will normally be taken to contract that the work will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock). The analogy with public services is often close, especially in the domain of hospital treatment in the National Health Service or education at a local education authority school, where only the absence of consideration distinguishes them from the private hospital or the fee-paying school performing the same functions under contract. In the law of tort, the same consequence follows where a statute imposes on the defendant personally a positive duty to perform some function or to carry out some operation, but he performs that duty by entrusting the work to some one else for whose proper performance he is legally responsible. In Morris v C. W. Martin & Sons Ltd [1966] 1 QB 716, 725-728, Lord Denning MR analysed the liability of a non-contractual bailee for reward in similar terms, as depending on his duty to procure that proper care was exercised in the custody of the goods bailed. ' Origins 8. This characterisation of non-delegable duties originated in the law of nuisance, and in a number of seminal judgments of Lord Blackburn in the late nineteenth century. It was implicit in the famous judgment of the Exchequer Chamber in Rylands v Fletcher (1866) LR 1 Ex 265, delivered by Blackburn J and subsequently affirmed by the House of Lords (1868) LR 3 HL 330, that the duty of the defendant to prevent the escape of water from his reservoir was non-delegable, for on the facts it was due to the operations of an independent contractor. The point became explicit in Dalton v Henry Angus & Co (1881) 6 App Cas 740, in which the House of Lords had to consider the duty of adjoining landowners not to withdraw support from each other's land. The withdrawal of support had been due to works carried out on the defendant's land by an independent contractor. Lord Blackburn, who delivered the principal speech on this point, regarded the interposition of an independent contractor as irrelevant, because of the nature Of the duty. At p 829 he put the point in this way: "Ever since Quarman v Burnett (1840) 6 M & W 499 it has been considered settled law that one employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something
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to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it: Hole v Sittingbourne Railway Co (1861) 6 H & N 488; Pickard v Smith 10 CB (NS) 470; Tarry v Ashton (1876) 1 QBD 314." 9 Rylands v Fletcher and Dalton v Henry Angus & Co might have been explained by reference to the hazardous character of the operation carried out by the defendant's contractor, and sometimes have been, notably by the Court of Appeal in Honeywill and Stein Ltd v Larkin Brothers (London's Commercial Photographers) Ltd [1934] 1 KB 191. But it is clear from Lord Blackburn's observations that the essential point about them was that there was an antecedent relationship between the parties as neighbouring landowners, from which a positive duty independent of the wrongful act itself could be derived. The duty was personal to the defendant, because it attached to him in his capacity as the occupier of the neighbouring land from which the hazard originated. 10. All of these features were also present in Hughes v Percival (1883) 8 App Cas 443, which was one of the first cases in which the same principle was applied to a duty of care. The parties were neigh bouring householders with a party wall. A builder working in the defendant's house negligently cut into the party wall, causing the partial collapse of both the defendant's house and the Plaintiff's house next-door. On its facts, therefore, the case had many of the classic features of the cases about non-delegable duties in the law of nuisance, and Lord Blackburn, delivering the leading speech in the Appellate Committee, proceeded by analogy with them. He put the matter in this way, at pp 445-446: "The first point to be considered is what was the relation in which the defendant stood to the plaintiff. It was admitted that they were owners of adjoining houses between which was a party- wall the property of both. The defendant pulled down his house and had it rebuilt on a plan which involved in it the tying together of the new building and the party-wall which was between the plaintiff's house and the defendant's, so that if one fell the other would be damaged. The defendant had a right so to utilize the party-wall, for it was his property as well as the plaintiff's; a stranger would not have had such a right. But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled. This is the law I think clearly laid down in Pickard v Smith 10 CB (NS) 470, and finally in (1881) Dalton v Angus 6 App Cas 740. ' But in all the cases on the subject there was a duty cast by law on the party who was held liable." ' Assumption of responsibility 11. The duty to which Lord Blackburn was referring would today be regarded as arising from an assumption of responsibility imputed to the defendant by virtue of the special character of his relationship with the claimant. The concept of an assumption of responsibility is usually relevant in the law of negligence as a tool for determining whether a duty of care is owed to protect against a purely economic loss. There is no doubt in this case that the education authority owed a duty of care to its pupils to protect them from injury. But the concept of assumption of responsibility is
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relevant to determine its scope, whether the potential loss is economic or physical. The circumstances must be such that the defendant can be taken not just to have assumed a positive duty, but to have assumed responsibility for the exercise of due care by any one to whom he may delegate its performance. This is a markedly more onerous obligation. What are the circumstances in which a person may be taken to have assumed it? They have been considered in a number of cases involving injuries sustained by employees, hospital patients, school pupils and invitees, at. The hands of persons working for the defendant for whom the defendant was not vicariously liable. 12. There are a number of situations where by virtue of some special relationship the defendant is held to assume positive duties. Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 is a classic example of a duty of care to perform professional services, arising out of a special relationship equivalent to contract but not contractual: see, in particular Lord Goff of Chieveley at pp 180-181. A corresponding relationship may also arise out of a sufficient degree of dependence, even in the absence any reliance, as it did in very different circumstances in Dorset Yacht Company v Home Office [1970] AC 1004 and White v Jones [1995] 2 AC 207, 275 (Lord Browne-Wilkinson). It does not, however, follow from the mere existence of a positive duty that it is personal to the defendant so as to make it non-delegable. In the nuisance or quasi-nuisance cases, the personal character of the duty results, as I have pointed out, from the fact it arises from the defendant's occupation of the land from which the hazard originates. In other cases, the personal character of the duty must be derived from something else. Both principle and authority suggest that the relevant factors are the vulnerability of the claimant, the existence of a relationship between the claimant and the defendant by virtue of which the latter has a degree of protective custody over him, and the delegation of that custody to another person. ' The employment cases 13. These matters first arose for consideration in the context of the common law duty of an employer to his workforce. This was an area in which the courts at an early stage of the development of the law of tort, adopted a protective approach to those who were vulnerable and not in a position to defend their own interests. In Wilsons & Clyde Coal Co Ltd v English [1938] AC 57, the House of Lords not only held that the employer had a duty to provide a safe system of work, but also that it was (in the modern terminology) non-delegable. Liability was not therefore excluded on the ground that the breach was due to the negligence of another employee, for which the employer would not (as the law then stood) have been liable because of the doctrine of common employment. The duty was non-delegable because of its personal character. Lord Macmillan said at p 75: "[The defendant] cannot divest himself of this duty, though he may-and, if it involves technical management and he is not himself technically qualified, must-perform it through the agency of an employee. It remains the owner's obligation, and the agent whom the owner appoints to perform it performs it on the owner's behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. If the owner's duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible." ' The fullest rationalization of the principle appears in the speech of Lord Wright. Referring to the earlier decision of the House in Lochgelly Iron and Coal Co v Mc Mullan [1934] AC 1, he observed at p 78: "This House held that, on the contrary, the statutory duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. The same principle, in my opinion, applies to those fundamental obligations of a contract of employment which lie outside
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the doctrine of common employment, and for the performance of which employers are absolutely responsible." ' Dealing, later in his speech, with, the scope of the duty, Lord Wright said at pp 83- 84: "The true question is, What is the extent of the duty attaching to the employer? Such a duty is the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by servants or agents. A failure to perform such a duty is the employer's personal negligence. This was held to be the case where the duty was statutory, and it is equally so when the duty is one attaching at common law... I think the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, a company, and whether or not the employer takes any share in the conduct of the operations," ' The principle thus expressed was qualified only by its limitation to those acts of the delegate which were within the scope of the employer's personal duty: "It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow-servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman, or other employees." (pp 84-5) ' So far as there was ever any doubt about the application of this principle to the negligence of an independent contractor, it was resolved by the House of Lords in McDermid v Nash Dredging and Reclamation Co Ltd [1987] AC 906. ' The hospital cases 14. In Gold v Essex County Council [1942] 2 KB 293, a voluntary hospital operated by a local authority was held liable for the negligence of a radiographer employed by it. The decision was an orthodox application of the doctrine of vicarious liability. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of special skill of a kind which the authority could not reasonable be expected to supervise or control. Lord Greene MR, however, considered more broadly the basis of the hospital's liability for the negligence of those through whom it discharged its duty of care to patients, at p 301: "the extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, while in the latter the only remedy is in tort, but in each case the first task is to discover the extent of the obligation assumed by the person whom ' it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill. It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than can an individual, and it is no answer to say that the obligation is one which on the face of it they could never perform themselves." 15. In Cassidy v Ministry of Health [1951] 2 KB 343, Gold v Essex County Council was followed in another case involving employed medical staff. The majority of the Court of Appeal (Somervell and Singleton LJJ) were content to treat the matter as an ordinary case of vicarious liability and to leave it at that. But Denning LJ considered that the critical factor was not the hospital's relationship with the doctor or surgeon, but its relationship with the patient, arising from its acceptance of the patient for treatment. He put the point as follows, at pp. 362-363:
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"when hospital authorities undertake to treat a patient, and themselves select and appoint and employ the professional men and women who are to give the treatment, then they are responsible for the negligence of those persons in failing to give proper treatment, no matter whether they are doctors, surgeons, ' nurses, or anyone else... 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." ' This is a robust assertion, albeit reflecting a minority view, that a hospital's duty of care to patients is personal as well as vicarious, and therefore…
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