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BY MELINA PADRON, DOUGHTY STREET CHAMBERS
Non-delegable duty of care
23 October 2013
Lady Hale (Deputy President), Lord Clarke, Lord Wilson, Lord Sumption (main judgment) and Lord Toulson
In July 2000 the appellant nearly drowned and suffered serious brain injury during a school swimming lesson which was provided by a third-party commercial organisation contracted by her then school. Proceedings were issued against the respondent for negligence. The appellant argued, amongst other things, that the respondent was liable for the negligence of the third-party because it owed her a "non-delegable duty of care" which applied to all mainstream school activities. The case was appealed to the Supreme Court. Lord Sumption gave the main judgment.
Although the "non-delegable duty" has been recognised by English law, no previous case identified a single theory which explains when it applies. This appeal was an opportunity to consolidate the principles found in the case-law.
After considering the origins and development of this duty, Lord Sumption identified two broad categories of cases where it was found to exist. The first includes cases in which the defendant employs an independent contractor to perform some function which is either inherently hazardous or liable to become so in the course of work. The second, in which this case falls, includes cases which meet the following defined characteristics:
(1) The claimant is a patient or child or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury;
(2) There is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to refrain from conduct which will foreseeably damage the claimant;
(3) The claimant has no control over how the defendant chooses to perform those obligations;
(4) The defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant, and the third party is exercising the defendant's custody or care of the claimant and the element of the control that goes with it; and
(5) The third party has been negligent in the performance of the very function assumed by the defendant and delegated to him.
The court rejected the argument that control of the environment in question is an essential element of this kind of case.
It found it fair, just and reasonable to impose such duty as it is consistent with the long-standing policy of the law to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives.
Applying the above criteria to the facts, the court unanimously found the non-delegable duty of care to apply. The case will return to the High Court to determine whether the defendant was negligent.
It is clear from the judgment that the court was concerned not to impose an unreasonable burden on the providers of critical public services. The judgment arguably suggests that the criteria required to be met before this duty is found to exist is rather strict and ensures liability is not "open-ended". Given its wider application, which will include claims against health service providers, care homes and prisons, we may soon see claims which test the limits set by these criteria. I suspect the courts may at times find themselves in some difficulty when deciding whether a function constitutes an integral part of the positive duty assumed towards the claimant.