When the buck doesn’t move: non-delegable duties of care

Organisations taking responsibility for providing services such as education or care to children, patients, or vulnerable people may find that they are liable even when they have contracted out elements of those services to a third party and it is the third party that is negligent.

The general law has it that an organisation is liable for its own acts or omissions and vicariously liable for the acts or omissions of its employees. An organisation is not usually responsible for the negligence of a third party such as an independent contractor. However, the concept of such “non-delegable” duties arise either where the activity is inherently hazardous (or “extra hazardous” as the case law has it) or where the nature of the relationship between the organisation and the victim of the negligence is particularly close. It is this second situation that arose in Woodland v Essex County Council.

In Woodland, a ten-year-old girl suffered a serious brain injury as a result of an accident during a swimming lesson organised by her state school but provided by a private contractor. The issue before the Supreme Court was whether the Council (the Local Authority responsible for the school) could be held liable for the negligent actions of the contractor (it had not been decided whether the contractor had in fact been negligent). The Supreme Court reviewed the law on non-delegable duties of care and set out the criteria when a non-delegable duty arises (see below).

The Supreme Court’s conditions for when a non-delegable duty arises:

1. The claimant is a patient or a child or is especially vulnerable to the risk of injury.

2. There is a relationship between the claimant and the defendant which places the claimant in the custody, charge or care of the defendant and that relationship imputes a positive duty on the defendant to protect the claimant from harm. This is likely to arise if the defendant has an element of control over the claimant.

3. The claimant has no control over how the defendant undertakes its obligations.

4. The defendant has delegated to a third party a function which is an integral part of its duty to protect the claimant so that the third party is exercising the defendant’s care of the person.

The Court was careful to limit the circumstances when a non-delegable duty arises. It noted that non-delegable duties of care are an exception to the usual principles of tortious liability and that courts should be sensitive about imposing them as they carried potentially significant financial burdens on those providing critical public services. The judgments make it very clear that this is not an open ended liability and that liability for the negligence of independent contractors only falls on the organisation if the contractor is performing functions that the organisation has assumed for itself a duty to perform.

How can we help you?
If you would like to discuss any issues raised by this article, please contact Richard Sykes on 0121 456 8436 or [email protected].

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