Woodland v Essex County Council 09.03.12

Court of Appeal upholds decision that school did not owe a non-delegable duty of care to pupil injured during a swimming lesson.  


Given that Essex County Council had admitted that it owed a common law duty of care to the Claimant, and those directly responsible for the swimming lessons are also Defendants to the claim, it may seem odd that this preliminary issue was brought before the Court of Appeal. However, the Court of Appeal’s judgment indicates that there may be doubt over the insurance position of other Defendants. This would explain why the Claimant was keen to try to strengthen her position.

Following previous case law, it is not surprising that the appeal failed. Lord Justice Tomlinson highlighted that, if a non-delegable duty was owed in these circumstances, this would leave an educational authority liable, for example, for the negligence of a zoo-keeper’s staff, where a child was bitten by an animal as a result of negligence whilst on an educational visit. In his view this would have a chilling effect on the willingness of educational authorities to provide valuable educational experiences.

It should be noted that Lord Justice Laws dissented from the majority view. He considered that a school or hospital owes a non-delegable duty to see that care is taken for the safety of a child or patient who:

  1. Is generally in its care
  2. Is receiving a service which is part of the institution’s mainstream function.

In his view, had this test been applied in this case, it could not be concluded that the claim was bound to fail.

We anticipate that this area will be the subject of further litigation.


In 2000 the Claimant, then aged 10, stopped breathing in the course of a swimming lesson and sustained a serious brain injury. Her school had arranged the lessons through Direct Swimming Services, the name under which Ms Stotford (D2) traded. Ms Maxwell (D3) was the lifeguard on the day. It was accepted that the relevant education authority, Essex County Council (D4), owed a common law duty of care to the Claimant, which included taking reasonable steps as would be expected by a reasonable parent to ensure that D2 and D3 were competent to perform the swimming lesson at the material time.

The High Court had been asked to consider, as a preliminary issue, whether D4 owed a pupil a non-delegable duty of care, and was therefore liable for the alleged negligence of non-employees when one of its pupils was injured during a swimming lesson. Mr Justice Langstaff held that this element of the claim was bound to fail.


The leading judgment in the Court of Appeal was given by Tomlinson LJ, who dismissed the appeal. He held that the Claimant had not provided any justification for the imposition of a non-delegable duty of care. The imposition of such a duty would have significant implications not just for education authorities but also for all those who operate schools and hospitals. A development of the law along the lines sought must be a matter for the Supreme Court.

Tomlinson LJ agreed with Langstaff J that a non-delegable liability to a hospital patient has yet to be established whilst he is within the four walls of the infirmary. To suggest that an education authority should be liable to a pupil who is injured outside the school itself potentially asks too much. The situations in which a school had, in Australia, been held to be liable under a non-delegable duty are closely analogous to the situations which might, but for there being no formal employment status, have given rise to vicarious liability. Tomlinson LJ did not believe that the Court of Appeal could find in the pleaded facts of this case any material on the basis of which it could conclude that the imposition of the duty would be fair, just and reasonable.