This post has been contributed by Vera Bermingham, Teaching Fellow for the Undergraduate Laws Programme.
The law of negligence has undergone enormous change and development in the last 50 years. In Woodland v Swimming Teachers Association  (module guide p.61)) Lady Hale said:
“The common law is a dynamic instrument. It develops and adapts to meet new situations as they arise. Therein lies its strength. But therein also lies a danger, the danger of unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case. So it must proceed with caution, incrementally by analogy with existing categories, and consistently with some underlying principle”.
In the two cases discussed below the Supreme Court was being asked to develop the law beyond the point which it had already reached (and disagree with the conclusions reached in the courts below). In Woodland v Swimming Teachers Association  UKSC 66 and Armes v Nottinghamshire County Council  UKSC 60 the court was asked to determine whether a local authority owed a non-delegable duty to ensure that all reasonable care was taken for the safety and welfare of the claimants. These decisions were influenced by policy considerations and the Court’s belief that innocent victims should be able to obtain compensation from solvent defendants (likely to be insured). Before proceeding further the nature of a common law non-delegable duty is distinguished from vicarious liability in tort.
What is a common law non-delegable duty?
A non-delegable duty of care imposes a primary duty on the defendant. Non-delegable duties are inconsistent with the fault-based principle in negligence because if a non-delegable duty is breached, even in the absence of fault, the defendant is liable. In Woodland Lord Sumption noted that the use of the term ‘non-delegable’ is misleading: a common law duty of care can never be delegated. It is either discharged or it is breached. However the term is in common usage and is used to mean a duty which cannot be discharged by entrusting its performance to an apparently competent independent contractor.
What is vicarious liability?
Vicarious liability is an exception to the principle that liability in tort depends on proof of a personal breach of duty. Where vicarious liability is imposed a defendant is liable for the tort of another, even though he commits no tort himself.
The extension of vicarious liability in the Supreme Court is considered by Professor Paula Giliker, ‘Vicarious Liability in the UK Supreme Court’ (2016) Vol. 7. The UK Supreme Court Yearbook, so the focus of this discussion is on the policy factors which influenced the Supreme Court in deciding whether or not to develop non-delegable duties of care in new situations.
Woodland v Swimming Teachers Association  UKSC 66
The claimant, a pupil at a school for which Essex County Council was responsible, suffered a severe brain injury during a swimming lesson, which was part of the school curriculum. The lesson did not occur on school premises, but at a pool run by another local authority and provided by a swimming teacher and a life guard, both of whom were employed by an independent contractor.
The trial judge and the Court of Appeal held that the education authority could not be said to have owed the claimant a ‘non-delegable duty of care’. The question for the Supreme Court was whether the defendant was under a duty to ensure that reasonable care was taken of the claimant, not only by the school and its employees, but also by the third party with whom the school contracted to perform its educational functions.
In allowing the claimant’s appeal, the Supreme Court ruled that the education authority had ‘assumed responsibility’ for the swimming lesson provided during the school day and it was therefore fair, just, and reasonable to hold the local authority liable. Lord Sumption acknowledged that liability under a non-delegable duty would place an additional burden on providers of public services who choose to outsource certain functions but he added that a non-delegable duty would be imposed only where it is ‘fair, just and reasonable’ to do so. He identified five defining features of a non-delegable duty:
- The claimant is a patient or a child, or is especially vulnerable or dependent on the protection of the defendant. Other examples are likely to be prisoners and residents in care homes.
- There is a relationship between the claimant and the defendant: (i) which places the claimant in the actual care of the defendant, and (ii) the defendant assumes a positive duty to protect the claimant from harm. Such relationships involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
- The claimant has no control over how the defendant chooses to perform those obligations—that is, whether personally or through employees or through third parties.
- The defendant has delegated to a third party an integral part of the positive duty assumed towards the claimant.
- The third party has been negligent in performing the very function assumed by the defendant and delegated to him.
In Woodland the Court said there can be no principled distinction between the position of a hospital and a school; each of the factors which give rise to the duty in the case of a hospital applies to a school. Arguably the case is stronger in the case of a school because only children attend school whereas adults are admitted to hospital. Lady Hale provided the following example:
Consider the cases of three ten-year-old children, Amelia, Belinda and Clara. Their parents are under a statutory duty to ensure that they receive efficient full-time education suitable to their age, ability and aptitude, and to any special needs they may have: ….. Amelia’s parents send her to a well known and very expensive independent school. Swimming lessons are among the services offered and the school contracts with another school which has its own swimming pool to provide these. Belinda’s parents send her to a large school run by a local education authority which employs a large sports staff to service its schools, including swimming teachers and life-guards. Clara’s parents send her to a small state-funded faith school which contracts with an independent service provider to provide swimming lessons and life-guards for its pupils. All three children are injured during a swimming lesson as a result (it must be assumed) of the carelessness either of the swimming teachers or of the life-guards or of both. Would the man on the underground be perplexed to learn that Amelia and Belinda can each sue their own school for compensation but Clara cannot ?
The Court ruled that a non-delegable duty was the appropriate means of securing equal protection; the school’s responsibility was not discharged simply by choosing apparently competent people to do it.
In Armes v Nottinghamshire County Council  UKSC 60 the question for the Supreme Court was whether the local authority owed the claimant a non-delegable duty to protect her from the physical and sexual abuse perpetrated by the foster parents into whose care they placed her (30 years ago). It was accepted that there was no negligence on the part of the social workers involved with placing the claimant with the foster parents or in the supervision and monitoring of the placements. The claimant argued in the alternative (successfully) that the local authority should be vicariously liable for the wrongful acts of the foster parents.
Her claim that the local authority was in breach of a non-delegable duty was dismissed by the High Court and the Court of Appeal and also unanimously rejected by the Supreme Court. This was clearly for policy reasons. The proposition that a local authority is under a non-delegable duty for the safety of children in the care of foster parents is too broad and the responsibility placed on local authorities too demanding. According to Lord Reed, giving the single judgment on this issue:
“If…..local authorities which reasonably decided that it was in the best interests of children in care to allow them to stay with their families or friends were to be held strictly liable for any want of due care on the part of those persons, the law of tort would risk creating a conflict between the local authority’s duty towards the children … and their interests in avoiding exposure to such liability. Furthermore, since a non-delegable duty would render the local authority strictly liable for the tortious acts of the child’s own parents or relatives, if the child was living with them following a decision reasonably taken under … a care order, followed by the placement of the child with his or her family, would be a form of state insurance for the actions of the child’s family members (and, indeed, their friends, relatives and babysitters, if the child were left with them).” (para 45)
In allowing the appeal that the local authority was vicariously liable for the abuse committed by the foster parents the majority of the Supreme Court considered the policy reasons set out by Lord Phillips in Various Claimants v Institute of the Brothers of the Christian Schools  1 All ER 670 (module guide p.61)) to ensure compensation for harm suffered by innocent claimants an important factor. Most foster parents have insufficient means to be able to meet a substantial award of damages. Furthermore, the situation in this case could be analysed by reference to criteria set out in Cox v Ministry of Justice  AC 660:
“The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.” (para 24)
Here the care of looked after children was the business of the local authority, carried on for them by the foster parents, who they selected, trained and supervised. The criteria were met. In his dissenting judgment Lord Hughes said that finding the local authority vicariously liable would extend vicarious liability for family and friend foster parents and this would result in undesirable family litigation in the courts. However, Lord Reed indicated that the majority view was that, as the parents were not selected and trained, they did not stand in the same relationship.
This ruling does address an anomaly in the law similar to that illustrated above by Lady Hale in Woodland. In this case the ‘man on the underground’ might be perplexed that the local authority could be vicariously liable for the abuse of a child by a member of staff in a children’s home but not liable for the abuse of a child in the care of foster parents. Giliker (above) notes the policy for the Supreme Court’s extension of vicarious liability to ensure compensation for victims is also taking place in the field of non-delegable duties (as evidenced in Woodland). The decision in Armes is likely to pave the way for continued extension of vicarious liability but it might be more sensible to have all these cases dealt with either as non-delegable duties or vicarious liability. With both in play claimants may have to pursue both lines, thus rendering litigation more complex and costly.