Non-delegable duty of care: beware of your liability for the actions of others

Beware of your liability for the actions of others

This article serves as a useful reminder, to certain institutions/public authorities, following last year’s case of Woodland v Essex County Council [2013], that they may be liable for any breach of duty by a third party i.e. contractor, to whom “personal” obligations have been delegated.

As many will recall, the tragic case of Woodland concerned a young girl who suffered severe brain injuries whilst taking part in a swimming lesson organised by her school. However, the swimming lesson had been contracted out to an independent provider, which employed its own staff to supervise and provide tuition to the children.

The local authority (for the school) claimed that it was not liable for the girl’s injuries, because it has delegated its duty of care, for the child, to the independent provider. On behalf of the child, it was asserted that the duty of care of the school was a direct (personal) duty, which could not be delegated, i.e. the school had a duty to take reasonable care to ensure the performance of the functions it carried out, even when these were contracted out to an independent provider.

The Court agreed with the child’s case and ruled that the duty of care could not be delegated by the school and that they were liable for the actions of the contractor, despite not directly being involved in the supervision or running of the swimming lesson.

The Court stated this type of (‘non-delegable’) duty of care, where the delegating party will remain liable for the actions of the independent provider, occurs when:

• The claimant (i.e. the party who is delegating the obligation) is a patient or child or is vulnerable or dependant on the protection of the defendant (i.e. an independent service provider) against risk or injury.
• There is an ongoing relationship between defendant and claimant, which places the claimant in actual custody, charge or care of the defendant.
• The relationship implies that the defendant has positive duty to protect the claimant from harm and there is an element of control over the claimant.
• The claimant has no control over how the defendant chooses to perform the obligations in question.
• The defendant has delegated those obligations to a third party.
• The third party has been negligent in the performance of the function delegated by the defendant i.e. it has breached the duty of care.

If the above is satisfied, the work itself can be delegated to a third party but the duty of care cannot. The defendant will remain liable as if they were undertaking the delegated work.

The types of institutions/related public authorities that need to remain particularly aware of this decision are:-

• Hospitals
• Care Homes
• Schools
• Prisons

The decision will have come as a surprise to many. It seems somewhat illogical that an institution can be found liable for the negligent actions of an independent third party, despite paying them to (solely) carry out certain obligations, without any supervision or involvement; particularly considering that under the law of tort, you are, generally, only liable for your own actions and not those of others.

Therefore, the above noted institutions/related public authorities will need to be careful as this decision has potentially exposed them to a range of claims. A practical suggestion would be to ensure that any contract entered into with an independent third party includes insurance provisions to indemnify them against the negligence of the third party, to whom they have delegated obligations. Should this insurance not be in place, the institutions/related public authorities may still have a claim against the third party for breach of contract.