In an edition of this ebulletin last year¹, we discussed the High Court’s decision in W v Swimming Teachers Association on the duty of care owed by a school to pupils and the extent to which a school is responsible for the actions of non-employees. Following an appeal made by the claimant in this case, the Court of Appeal has now given its judgment.

What were the facts of the case?

The claimant in the case, Annie Woodland, suffered severe brain damage when she nearly drowned during a swimming lesson at a local swimming pool that was run by Basildon Council.

The school had contracted with Direct Swimming Services, an independent contractor, to provide the swimming lessons for the school’s pupils. Both the lifeguard and the swimming teacher were employed by the contractor.

Why was the local authority potentially liable?

The Court of Appeal struck out the argument that schools and local authorities could be liable for the negligence of an independent contractor on the basis that the duty of care that they owe to their pupils could not be delegated

There were three elements to the claim against Essex County Council, the local authority responsible for the school. The claimant argued that the local authority:

1. owed a common law duty of care to pupils of the school; this included an obligation to ensure that independent contractors engaged were reasonably competent
2. was vicariously liable for the actions of the contractor
3. remained liable because the duty of care that it owed to the claimant was non-delegable.

The local authority accepted that it owed a duty to ensure that independent contractors were reasonably competent. Whether the local authority was actually liable under this point is yet to be decided at trial on the facts of the case.

The local authority did not, however, admit liability under the other two points and applied to have these allegations struck out.

What is the Court of Appeal’s decision?

The Court of Appeal upheld the decision of the High Court, striking out the argument that schools and local authorities could be liable for the negligence of an independent contractor on the basis that the duty of care that they owe to their pupils could not be delegated.

The school’s duty of care to its pupils could therefore be discharged by entrusting the performance of such duty to an apparently competent independent contractor. The Court of Appeal agreed that pupils were a vulnerable class of persons, and that there may therefore be circumstances in which a school would owe a duty to ensure that care was taken (not just a duty to take care themselves). This duty is arguably discharged by ensuring the appointment of a reasonably competent contractor.

What is the policy behind this decision?

There are a number of policy reasons behind this decision.

This decision will prevent schools and local authorities effectively acting as an ‘insurer’ for the independent contractors who perhaps may not be a financially viable option for compensation. It is generally expected that adequate insurance arrangements will be reflected in the cost of the services paid for.

‘Children should be able to experience a wide range of activities. Health and safety measures should help them to do this safely, not stop them’

Schools have always hired independent contractors to provide services that are not financially viable for the school to provide themselves. If a local authority remained liable for harm caused during the provision of services that were not under its direct control, there would be organisational and insurance implications for schools. Not only would there be considerable additional costs (even before a claim occurs), but no doubt schools would also be put off running the risk of an accident occurring and pupils would be the ones to suffer, as they would miss out on what many consider to be vital aspects of their education.

This concern is something that the current government has been very keen to take a firm line on. A key point in the DfE’s latest health and safety guidance for schools and local authorities (last updated in February 2012) is that: ‘children should be able to experience a wide range of activities. Health and safety measures should help them to do this safely, not stop them.’

What are the implications for teachers and schools?

The Court of Appeal highlights in its judgment the potentially ‘chilling' effect on the willingness of education authorities to provide valuable educational experiences for their pupils’ that such a liability would lead to. Again, this position is in line with the DfE’s health and safety guidance (referred to above), which aims to encourage teachers to organise more school trips and to reduce the bureaucracy around health and safety issues.

If such a liability were imposed on schools and local authorities, no doubt the risk of high potential costs and liabilities would lead schools to reach the decision that many activities are not worth the risk.

Schools and local authorities will therefore be relieved that the Court of Appeal has decided not to burden schools with this additional potential liability. This decision, coupled with the reduced bureaucracy advocated in the DfE’s guidance, should lead to increasing valuable and active experiences for pupils in schools.

However, it remains essential for schools and local authorities always to give careful thought to the balance between pupil safety and ensuring that students have freedom to experience a range of educational activities.

¹W v Swimming Teachers Association was reported in the 15 November 2011 issue.