There have been numerous interesting liability decisions in the last few months. Space permits only a brief summary.
In Woodland v Essex County Council21 the Supreme Court looked at the (limited) circumstances in which a non-delegable duty of care would arise. The factors were these: (1) the claimant was a patient or a child, or for some other reason was especially vulnerable or dependent on the protection of the defendant against the risk of injury (other examples were likely to be prisoners and residents in care homes); (2), there was an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, which placed the claimant in the actual custody, charge or care of the defendant, and from which it was possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, not just a duty to refrain from conduct which would foreseeably damage the claimant. It was characteristic of such relationships that they involved an element of control over the claimant, which varied in intensity from one situation to another, but was clearly very substantial in the case of schoolchildren; (3), the claimant had no control over how the defendant chose to perform the relevant obligations (whether personally or through employees or third parties); (4), the defendant had delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the claimant; and the third party was exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that went with it; (5), the third party had been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. On the facts the council owed such a non-delegable duty to secure the safety of a pupil attending a swimming lesson conducted through an independent contractor.
In Risk v Rose Bruford College22 it was held that a college owed no duty of care to a student to protect him against the risk of an injury he had sustained by jumping head- first into a small inflatable pool. At an annual event run by the student union the claimant dived head first into the pool. He brought a claim under the Occupiers Liability Act 1957. There was no dispute that that general duty applied but the question was whether a specific duty was owed to protect him from the risk he had taken. The claim failed. A duty to protect against obvious risks or self-inflicted harm existed only in cases in which the potential victim had no genuine and informed choice, or lacked capacity. In the absence of some particular assumption of responsibility, where the victim was of full age and capacity, was not under the protective wing of an occupier with control over what he might do, and had a genuine and informed choice, the occupier had no duty to protect him from an obvious risk which he created himself, Tomlinson v Congleton Borough Council 23 followed.
See also West Sussex County Council v Lewis Pierce (a child)24: a school was not under a duty to safeguard a child from harm under all circumstances, and was not liable where a child had accidently punched a metal water fountain and sustained injury.
In Personal Representative of the estate of Cyril Biddick v Mark Morcom 25 an elderly homeowner who was having his loft insulated offered to stand with a pole underneath the hinged hatch door to see that it remained closed while the workman drilled the inside of it. He moved away to answer the phone and the workman fell through the opening and was seriously injured. The homeowner was liable because his offer to help amounted to an assumption of responsibility for seeing that the latch remained closed, and he was required to discharge the resulting duty carefully. It did not matter that the workman had not relied on the homeowner because this was not a case of economic loss. The finding that the workman had been two thirds contributorily negligent was upheld.
In Gillian Harrison v Technical Sign Co Ltd and others: Active Commercial Interiors Limited (Part 20 respondent) v Cluttons LLP (Part 20 appellant) 26 the Court of Appeal reversed a first-instance finding to conclude that the relationship between a firm of surveyors, acting as agents of the landlord when inspecting a shop awning for damage, and the owners of the shop, whose shopfront sign had later fallen and caused serious injury to passers-by, was insufficient to sustain a finding that the surveyors owed a duty of care to the passers-by or the shopowners.
In Susan Cox v Ministry of Justice 27 the defendant was found vicariously liable for the injury caused in one of its prisons by a prisoner undertaking paid kitchen work. The claimant was a catering manager cleaning up a spillage caused by one prisoner when another prisoner dropped a sack on her back: there was no dispute that that act was negligent. The claimant was not strictly speaking an employee but a servant of the Crown. It was argued that the defendant was liable on the basis that it was vicariously liable for the prisoner’s negligence, and on the usual employer/ employee bases. On appeal it was held that the relationship between the prisoner and the prison was akin to employment and the work was essential to the functioning of the prison and benefitted the defendant – there was no reason why the defendant should not take on the burden as well as the benefit of that work. On the particular facts of the case the defendant was vicariously liable for the acts of the prisoner and the claim succeeded.
Finally, in Dunhill v Burgin 28 the Supreme Court considered the question of settlement and capacity. Capacity was to be judged in relation to the decision or activity in question and not globally, Masterman-Lister v Jewell 29 approved. It was clear that the defendant had not had capacity to conduct her claim. While every procedural step in an action was capable of retrospective cure, the settlement finally disposing of the claim was not. Although there was a need for finality in litigation, the policy underlying the CPR was that children and protected parties required and deserved protection, not only from themselves but also from their legal advisers.