Third party contractors – are you still liable?

Written by: HTU | Published:

When bringing in third parties to carry out certain functions, to what extent is your school liable when things go wrong? Legal expert Ben Collingwood explains the ‘non-delegable duty of care’.

A recent court case, Woodland v Essex County Council (ECC), has shone a spotlight on duty of care and the relationship between schools and third party contractors. The case hinged on the question: do schools owe pupils a “non-delegable” duty of care? In other words, where a school brings in a third party to carry out certain functions, can the school be held liable for the negligence of the third party? 

In Woodland v ECC, the school engaged a contractor (Direct Swimming Services) to organise swimming lessons for its pupils. The contractor had in turn appointed a swimming instructor to conduct the lessons during school hours with a lifeguard in attendance at an off-site swimming pool. A class attended the swimming pool with a teacher, who handed the children over to the swimming instructor. 

At some point during the lesson, a child, who was to become the claimant in the case, came into difficulty in the water. She was successfully resuscitated but suffered a serious brain injury. The claimant alleged that her injuries were due to the negligence of the swimming instructor and the lifeguard and that ultimately the school was liable for that negligence. 

In general, in order to be liable in negligence, a party must personally breach a duty of care which it owes towards another party. One exception to this general rule is where a party may be vicariously liable for the negligence of its employees. The question here was whether the school could be liable for the negligence of parties who were not its employees, where it had delegated part of its responsibilities to a contractor. 

The Supreme Court held that a non-delegable duty does exist. In other words, a school must go beyond being careful in selecting a contractor, but must procure the careful performance of work delegated to others.

The Supreme Court provided clear guidance as to the circumstances where a non-delegable duty of care arises:

  1. The claimant is a patient or child or is otherwise vulnerable or dependent on the defendant for protection against risk of injury.
  2. There is an existing relationship between the claimant and defendant which places the claimant in the actual charge or care of the defendant and from which it is possible to impute a positive duty on the defendant to protect the claimant from harm.
  3. The claimant has no control over how the defendant chooses to perform those obligations, whether personally, using employees or third parties.
  4. The function delegated is an integral part of the defendant’s obligations towards the claimant.
  5. The third party has been negligent in its performance of that very function, rather than some peripheral matter. 

So, in the school context, where a contractor is negligent in its performance, the question as to whether or not the school will be liable will depend on precisely what function has been delegated and whether that function is an integral part of the school’s responsibility. 

This case was distinguished from other cases, for example where a school was not held to be liable for the negligence of a taxi firm which it had engaged to ferry children to and from school. The school in that case had no statutory duty to transport children to and from school, only to arrange and pay for the service, and so had not delegated any charge or care of its pupils. The school will not be liable for the negligence of its contractor unless it has delegated the very function which it is under a duty to fulfil.

In this instance, the school had a duty to provide swimming lessons and ensure that they were carefully conducted and supervised. The incident took place in school hours in a place selected by the school. The school delegated its function to the extent necessary to be able to deliver the swimming lesson and the alleged negligence took place in the course of the very function which the school had assumed an obligation to perform and had delegated to its contractor. The court concluded that if the contractor was negligent and a child was injured as a result, the school must be liable for a breach of its duty.

The Supreme Court acknowledged that it must be careful not to unreasonably impose financial burdens on schools, but concluded that it is fair, just and reasonable to impute this non-delegable duty in these circumstances. The court’s stated criteria are consistent with long-standing legal policy to protect vulnerable people who are highly dependent on the standards of care of people who have control over them. Parents are required by law to send their children to school and have little or no influence over the manner in which a school exercises it functions. 

Liability is limited to functions which the school has a duty to perform, usually in school hours, on school premises or in another location where it has chosen to perform the function. The school will not be liable where its duty does not extend to performing the function but only to arranging for its performance. Therefore schools will not, in general, be liable for the negligence of contractors providing extra-curricular activities outside school hours, or for contractors to whom no control over the child has been delegated – eg, bus drivers or places such as museums to which pupils may be taken during school hours.

Historically, many of the functions now delegated to contractors would have been performed by employed staff and the school would have therefore been vicariously liable for the employee’s negligence, so the non-delegable duty would not, overall, significantly increase the potential liability of education authorities. 

Private fee-paying schools already have non-delegable duties under their contracts with parents and there would not appear to be any good reason in law why the lack of a fee should produce a different result when education is provided by the state. 

While the case of Woodland has clearly raised concerns in the maintained sector, these final observations of the Supreme Court demonstrate the basis of its decision. Children, whether in private education or in a maintained school being instructed by an employed member of staff, or a contractor, should be afforded the same level of protection and that is precisely the effect of this tragic case.  

  • Ben Collingwood is a specialist education and employment law associate with Barlow Robbins LLP.

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