A school, or the authority responsible for it, does not owe a non-delegable duty to its pupils to ensure that reasonable care is taken to secure its pupils’ safety in the course of a swimming lesson conducted by an independent contractor, off school premises. The school or authority is answerable for its own acts or omissions, and vicariously responsible for those of its employees, but it is not responsible for the negligence of an independent contractor.

The claimant, aged ten at the time, suffered severe hypoxic brain injuries following an incident in a swimming lesson organised by her school. The defendant council was responsible for the school in question. The lesson took place at a pool run by another council and was run by an independent contractor, Beryl Stopford, trading as Direct Swimming Services.  

The claimant framed her claim against the defendant council as follows:  

  • The defendant owed her a duty to take reasonable care to ensure that its independent contractor was careful and competent so that her employees, the swimming teacher and the lifeguard, were suitably qualified and experienced;
  • The defendant was vicariously liable for the negligence of the independent contractor, the swimming teacher and the lifeguard; and
  • The defendant owed the claimant a non-delegable duty of care “in the capacity loco parentis”.  

The judge below struck out the vicarious liability allegation on the ground that the individuals referred to were not the defendant’s employees. He also struck out the non-delegable duty of care allegation and the claimant appealed against this part of his judgment.

The Court of Appeal reviewed the authorities concerning a non-delegable duty. This is a duty to provide that care is taken by others as opposed merely to a duty to take care yourself. It has been accepted by the courts that there are strong policy arguments for holding that a hospital which offers treatment to a patient accepts responsibility for the care with which that treatment is administered, regardless of whether it employs the person delivering the treatment. This non-delegable duty has not been extended, however, to circumstances where the treatment in question is not carried out at the hospital (Farraj v King’s Healthcare NHS Trust).

Imposing a non-delegable duty on schools and education authorities was held by the majority to be unacceptable. Tomlinson LJ, with whom Kitchen LJ agreed, concluded that it would be likely to have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils.

Laws LJ, dissenting, was unable to find a rational distinction between schools and hospitals which both accept responsibility to take care of people who are particularly vulnerable or dependent. He was not in favour, however, of an unlimited duty to ensure that care was taken to keep pupils or patients safe in any setting. The correct test, in his view, could be expressed as follows:

“A school or hospital owes a non-delegable duty to see that care is taken for the safety of the child or patient who (a) is generally in its care, and (b) is receiving a service which is part of the institution’s mainstream function of education or tending to the sick”.