Not very impressive.

The majority want to confine the (non-delegable) duty of a school that care is taken of its pupils (as opposed to the duty we all owe to take personal care in relation to others) to cases where the school has control over the conduct of the teachers and(or?) the pupils are on school premises (see Tomlinson LJ at [44], Kitchen LJ at [81]).

Now, if non-delegable duties were a form of vicarious liability, both of these potential limitations make sense. However as they are not, they don't.

If I bail my watch to you to be mended, and you sub-bail the watch to an apparently competent sub-contractor who loses it, you are liable to me for its loss. The duty assumed is non-delegable. The liability of the bailee is not vicarious. That no control is exercised over the independent contractor and that the repairs do not take place on the bailee's own premises is irrelevant. The positive duty of a the bailee to ensure that care is taken, or by a school towards its pupils, is not the same duty that we are all under not to injure others. (The presence or absence of a contract is neither here nor there).

The suggestion that it might have been different if the swimming pool had been on the school's grounds (which it might have been if it had been a private school) is especially odd as the non-delegable duties that occupiers owe towards those they assume positive duties towards by inviting them on to their premises was abolished by the Occupiers Liability Act 1957. Do we really think that schools only assume duties that care is taken towards their pupils when they are on the school's premises?

Counsel may well have done rather better with a bit more research to show how commonplace such duties are. Once it had been conceded that what was being asked for was an exception to general principles the case was lost.

Rob
________________________________________
From: Gerard Sadlier [gerard.sadlier@gmail.com]
Sent: 09 March 2012 12:05
To: obligations@uwo.ca
Subject: The Non-delegable Duties of Schools Toward Their Pupils in the Court of Appeal

Dear all,

The English Court of Appeal (Laws, Tomlinson and Kitchin LJJ) today
handed down its judgment in Woodland v. Essix County Council.

http://www.bailii.org/ew/cases/EWCA/Civ/2012/239.html

Listers will be familiar with the first instance judgment which was
discussed previously and.

The appellant schoolgirl suffered very serious injuries at a swimming
pool. She sued the local education authority, claiming (among other
things) that it owed her a non-delegable duty of care.

Langstaff J struck out that part of her claim. The majority of the
Court of Appeal affirm's his decision, over the strong dissent of Laws
LJ.


While the whole of Laws LJ's judgment deserve's to be read, the
fundamentals of his argument appear at 30:

30. There are strong reasons for saying that it is appropriate that a
school authority comes under a duty to ensure that reasonable care is
taken of pupils attending the school. This was the view expressed by
Kitto J in Ramsay v. Larsen (1964) 111 CLR, at p 28. The immaturity
and inexperience of the pupils and their propensity for mischief
suggest that there should be a special responsibility on a school
authority to care for their safety, one that goes beyond a mere
vicarious liability for the acts and omissions of its servants."
In Introvigne Brennan J also cited Kitto J in Ramsay v Larsen, and continued:
"8... The primary duty of the school authority is, so to speak,
antecedent to its employment of staff. The existence and nature of
that duty do not depend upon the staffing arrangements which it makes;
nor is the duty discharged or extinguished by making arrangements for
the staffing of the school. Though the primary duty, so far as it
requires supervision of the pupils, will ordinarily fall to be
discharged by the teachers at a school, a school authority's liability
for damage caused by a failure to provide supervision is founded on
the school authority's failure to discharge a duty which it assumed
when the child was enrolled and which is sustained by the continued
acceptance of the child as a pupil. Of course, a teacher may be under
a like duty to the child, but the teacher's duty is not determinative
of the duty of the school authority."
12.This learning was followed by the New South Wales Supreme Court in
De Beer v State of New South Wales [2009] NSWSC 364, in which a pupil
had suffered an electric shock from a power board during an Outward
Bound course organised and equipped by a third party. In Fitzgerald v
Hill & Ors [2008] QCA 283 McMurdo P in the Supreme Court of Queensland
undertook a comprehensive overview of the Australian learning,
beginning with Ramsay v. Larsen. He cited Introvigne in some detail,
and noted (paragraph 58) that Mason J's observations in Kondis had
been approved by the High Court in Burnie Port Authority v General
Jones Pty Ltd (1994) 179 CLR 520. Then at paragraphs 66 – 67 McMurdo P
said this:
"66. The following principles relevant to the present case can be
discerned from the discussion above. The non-delegable duty of care is
a special duty to ensure that reasonable care is taken for the safety
of those to whom it is owed. It is not vicarious; it is a personal
duty, breach of which requires fault. It is an onerous duty in that if
a defendant owing the duty to a claimant does not take reasonable care
to avoid a foreseeable risk of injury which eventuates causing damage
to a claimant, then liability cannot be avoided by the defendant
engaging another to carry out the defendant's responsibilities.
67. Whether the duty arises in a particular case will depend on the
relationship between claimant and defendant. It is well established
that this non-delegable duty is owed by a school authority to a pupil
and by a hospital to a patient. Factors which support the existence of
the duty include whether the relationship is one where the defendant
has a high degree of control, the claimant is vulnerable, or the
claimant has a special dependence on the defendant. The categories of
situations where a non-delegable duty of care is owed are not closed,
but courts should exercise care in extending them."
13.The last Australian case I should cite is New South Wales v Lepore
(2003) 212 CLR 511. The question was as to the liability of a school
authority for the sexual abuse of a pupil by a teacher whom the
authority employed. The case proceeded on two premises: that there was
no vicarious liability, and that there was no fault on the part of the
authority itself. Gleeson CJ said at paragraph 3:
"The argument is that the authority's duty to take reasonable care for
the safety of pupils, because it is non-delegable, may become a source
of liability for any form of harm, accidental or intentional,
inflicted upon a pupil by a teacher."
Gleeson CJ distinguished the case before him from that which arose in
Introvigne or Kondis. He stated at paragraph 31:
The failure to take care of the plaintiff which resulted in the
Commonwealth's liability in Introvigne was a negligent omission on the
part of the teachers at the school, acting in the course of their
ordinary duties. The hospital cases, which were treated by Mason J as
analogous, similarly involved negligence. A responsibility to take
reasonable care for the safety of another, or a responsibility to see
that reasonable care is taken for the safety of another, is
substantially different from an obligation to prevent any kind of
harm..."
And the nature of the difference is vigorously explained, notably at
paragraphs 32 and 36. In the result the court rejected the case based
on non-delegable duty. Lepore is helpful as suggesting that the cases
in which such a duty may arise are limited to instances of negligence
as opposed to other kinds of legal wrong.
ENGLAND AND WALES
14.Authority in this jurisdiction has been much more muted than in
Australia, though a non-delegable duty has been recognised in some
cases aside from negligence, and it is of interest in light of Lepore
that in Scotland Lady Paton, sitting at first instance in the Outer
House of the Court of Session in AM v Hendron & Ors [2005] CSOH 121,
declined to strike out a claim alleging that the Scottish Education
Department owed a duty of care to victims of sexual abuse perpetrated
by monks working at a residential institution where children were
placed by the Department. Generally the question whether, or at least
when, the step beyond the paradigm case of duty of care should be
taken has proved difficult and elusive. In A (A Child) v Ministry of
Defence [2005] QB 183, to which I will shortly refer in greater
detail, Lord Phillips of Worth Matravers MR as he then was said this
at paragraph 29:
"The circumstances that give rise to the non-delegable duty of care
that Mr Tattersall seeks to establish are not readily identifiable in
English case law. They perplexed Professor Glanville Williams nearly
50 years ago (see 'Liability for Independent Contractors' [1956] CLJ
183) and they have become little clearer since then."
15.In Brown v Nelson & Ors [1971] LGR 20 (another case of a school
pupil on an Outward Bound course) Nield J dismissed the claim, stating
at p. 25 that "where a school must take their pupils to other
premises, they discharge their duty of care if they know the premises
and if the premises are apparently safe, and if they know that the
premises are staffed by competent and careful persons." In Gold and in
Cassidy the respective views of Lord Greene MR and Denning LJ, which
favour the present appeal, did not represent the majority basis of
decision. There are however two decisions in this court which with
respect demand close attention: A (A Child) v Ministry of Defence, to
which I have just referred, and Farraj v King's Healthcare NHS Trust
[2010] 1WLR 2139.
16.In A (A Child) the claimant, the child of a British soldier and his
wife serving in Germany, had been prematurely delivered in a German
hospital by a German obstetrician. The background was that the
Ministry of Defence had, after 1996, contracted with an English NHS
Trust for the latter to arrange for the provision of secondary health
care for servicemen and their families in German hospitals. The
claimant suffered brain damage at birth caused by the obstetrician's
negligence. Suing by his mother and next friend he asserted that the
Ministry owed him and his mother a non-delegable duty of care to
ensure that they were provided with medical treatment that was
administered with due skill and care. At paragraph 30 Lord Phillips
stated that "[i]n most cases [sc. where the step beyond the paradigm
has been taken] it is possible to identify considerations of policy
which led to the imposition of the duty". He proceeded to cite Gold v
Essex CC, Cassidy v Ministry of Health and other learning, and
considered the Australian authorities, citing (paragraph 43) Mason J
in Kondis. He referred to Yepremian v Scarborough General Hospital
(1980) 110 DLR (3d) 513 in which the Ontario Court of Appeal by a
majority declined to apply a "non-delegable" duty in the hospital
context.
17.Turning to counsel's argument for the claimant, Lord Phillips said
this (paragraph 47):
"He submitted that, having regard to the facts as they existed in
1998, the court should find that the MoD owed a non-delegable duty to
ensure that A and B were provided with medical treatment that was
administered with proper skill and care. He accepted that so to find
would go beyond not merely the decisions of the English courts but
also those of the Australian courts. This was because hitherto a
non-delegable duty has only been found in a situation where the
claimant suffers an injury while in an environment over which the
defendant is in control. Mr Tattersall accepted that the MoD was not
in control of the Gilead Krankenhaus."
The claimant's counsel in particular founded on a policy argument to
the effect that (paragraph 50)
"it was desirable that British servicemen and their dependants should
be able to sue the MoD in this country in respect of medical
negligence suffered in a foreign hospital rather than being
constrained to bring proceedings in the foreign jurisdiction in
question. He sought to buttress his argument by reference to a paper
for the guidance of primary care and acute trusts published by the
Department of Health in November 2002...".
This argument was rejected by Lord Phillips (with whom Tuckey and Wall
LJJ agreed), but his observations in the course of doing so bear on
the question whether in this case we should uphold the duty contended
for.
18.The material passages are as follows:
"52. Mr Tattersall's submissions seek to extend the law of negligence
beyond any previous decision of the English court, subject to one
exception. The exception is the finding of the existence of a
non-delegable duty of care made by Judge Garner as one of the grounds
of his decision in M v Calderdale and Kirklees Health Authority [1998]
Lloyd's Rep Med 157. This finding did not represent the current state
of English law. It seems to have been based on the observations of
Lord Greene, MR in [Gold] and of Denning LJ in [Cassidy], although in
neither instance did these represent the reasons for the decision of
the majority of the court.
53. More significantly, in each of these cases the court was concerned
with the duty of the hospital that was actually carrying out the
treatment of the patient. The Australian cases postulated the
non-delegable duty of a hospital on the basis that the hospital had
accepted the patient for treatment. Judge Garner extended the
principle beyond this. Thus Mr Tattersall is realistic in accepting,
as he did, that, if he is to succeed on his appeal, he must persuade
us on policy grounds to expand this area of tortious liability."
Lord Phillips then considered the guidance paper relied on by counsel,
and the practicalities of taking proceedings in Germany against the
Gilead hospital. He was unpersuaded that the claimant would face
increased difficulties if he had to take that course. Then this:
"60. There is no suggestion here that there has been any fault on the
part of the MoD. There is no suggestion that the imposition of the
duty of care for which Mr Tattersall contends would or could impact on
the care actually taken by DGPs [sc. "Designated German providers"].
In these circumstances I can see no justification for imposing a
non-delegable duty on the MoD to ensure that due skill and care is
exercised in those hospitals. It seems to me that Germany is the
appropriate forum for this litigation and that the Gilead Krankenhaus
is the appropriate defendant. I must, however, deal with the
alternative ways in which Mr Tattersall advanced his case."
Finally, under the heading "The duty on the MoD before 1996" Lord Phillips said:
"62. The starting point of Mr Tattersall's argument was that, when the
MoD was running its own hospitals in Germany, it owed service
personnel and their dependants a non-delegable duty of care in
relation to the secondary medical treatment that they received. The
second stage in the argument was that, because the duty was
non-delegable, it remained binding upon the MoD after the transfer in
1996 of the provision of secondary health care from the military
hospitals to the DGPs.
63. As to the first limb of the argument, I was attracted by the
Australian jurisprudence on which Mr Tattersall has relied. It seems
to me that there are strong arguments of policy for holding that a
hospital, which offers treatment to a patient, accepts responsibility
for the care with which that treatment is administered, regardless of
the status of the person employed or engaged to deliver the treatment.
Lord Browne Wilkinson in X v Bedfordshire [[1995] 2 AC 633, 740]
proceeded on the premise that this is established English law...
But Lord Phillips rejected (paragraphs 64 – 65) the second limb of
counsel's argument:
"65. The answer to Mr Tattersall's argument, as Mr Lloyd Jones
submitted, is that the basis of the duty asserted by Mr Tattersall,
assuming such duty to be made out, was the fact that the MoD itself
undertook the hospital care of its personnel and their dependants.
Only while it continued to do so would the duty persist."
19.Clearly the court in A (A Child) did not repudiate the Australian
learning, at any rate for the case of a hospital which had accepted
responsibility for the care of a patient. The asserted duty was
rejected for two reasons. First, counsel's specific policy argument,
advanced in reliance on the Department of Health guidance paper, did
not carry the day. But secondly – and more germane to the present case
– the MoD on the facts had not undertaken the hospital care of its
personnel and their dependants; and such an assumption of
responsibility was at the forefront of the Australian cases.
20.Before indicating where A(A Child) takes the present case let me
turn to Farraj v King's Healthcare NHS Trust [2010] 1 WLR 2139. The
claimants, a married couple, were carriers of a gene which could cause
a disabling blood disorder. Their second child suffered from the
condition. Mrs Farraj was pregnant. They were advised that she should
undergo DNA testing to ascertain whether their third child would also
suffer from the disease. A chorionic villus sample was taken from Mrs
Farraj. Foetal tissue from the sample had to be identified and the
foetal cells cultured. This work could not be done in-house, and the
defendant Trust (KCH) arranged for it to be carried out by a
cytogenetics laboratory run by a highly reputable independent
contractor. A cultured sample was returned to KCH, tested, and found
negative. But when the claimants' third child was born he was found to
have the disease. The independent laboratory was said to have been
negligent because their technician had doubts whether the sample
provided contained any foetal tissue, but failed to communicate her
doubts to KCH.
21.The question whether KCH might themselves be liable for the
negligence of the laboratory was raised by way of cross-appeal. Dyson
LJ, as he then was, cited authority including (paragraph 71 ff)
Wilsons & Clyde Coal Co v English [1938] AC 57, in which the House of
Lords held that an employer owed a personal duty to provide a safe
system of work which was breached by the negligence of an employee as
a result of which another employee was injured. This was a like case
to that before us, and not an instance of vicarious liability, because
it was held that the employer owed a personal duty; and the duty would
as surely have been breached had the unsafe system of work been
devised by a negligent independent contractor as by an employee (see
Dyson LJ's observations in Farraj at paragraph 73, citing Mason J in
Kondis).
22.Dyson LJ opined (paragraph 74) that the rule in Wilsons & Clyde
Coal was to be explained by the injustice of the then prevailing
doctrine of common employment. He turned to the hospital cases, and
noted (paragraph 76) that "Lord Greene MR in Gold and Denning LJ in
Cassidy and again in Roe [sc. Roe v Minister of Health [1954] 2 QB 66]
founded liability on the wider basis that the hospital is liable for
the negligence of those who administer treatment in its hospital,
regardless of their employment status." Dyson LJ also noted (paragraph
78) the obiter observations of Brooke LJ in Robertson v Nottingham
Health Authority [1987] 8 Med LR 1, 13 ("[a health authority] has a
non-delegable duty of care to establish a proper system of care...").
He discussed A (A Child) at some length. Then this at paragraph 88:
"I am prepared to assume (without deciding) that the editors of Clerk
& Lindsell are right and that English law has now reached the stage
that the approach advocated by Lord Greene and Denning LJ should be
adopted. It is true that the extent to which a hospital owes a
non-delegable duty to ensure that its patients are treated with due
skill and care will depend on the facts of the particular case. But I
shall assume that a hospital generally owes a non-delegable duty to
its patients to ensure that they are treated with skill and care
regardless of the employment status of the person who is treating
them. As explained in Kondis, the rationale for this is that the
hospital undertakes the care, supervision and control of its patients
who are in special need of care. Patients are a vulnerable class of
persons who place themselves in the care and under the control of a
hospital and, as a result, the hospital assumes a particular
responsibility for their well-being and safety. To use the language of
Caparo Industries plc v Dickman [1990] 2 AC 605, 618A it is therefore
fair just and reasonable that a hospital should owe such a duty of
care to its patients in these circumstances. The claim in A's case
failed inter alia because A's mother was not admitted to an MoD
hospital and this court was not willing to extend the non-delegable
duty of care to a duty to ensure that the treatment in a hospital over
which the MoD had no control was carried out with due skill and care."
23.Dyson LJ considered (paragraphs 90-91) that the hospital cases
where the extended duty had been upheld, like Wilsons & Clyde Coal,
were driven by policy considerations determined by the courts by
reference to what is fair, just and reasonable. The claimants in
Farraj lost on the facts:
"92. Even on the assumption that I have made as to the effect of the
hospital cases, I do not consider that they justify the conclusion
that, on the facts of this case, KCH owed the claimants a
non-delegable duty to ensure that CSL carried out the task entrusted
to it with due skill and care. I do not accept that it follows from
the fact that KCH is a hospital that the jurisprudence to be found in
the hospital cases should be applied. The claimants were not admitted
to KCH for treatment. KCH has at all material times provided
diagnostic and interpretative services for chorionic villus sampling.
But there is no reason to suppose that these services could not have
been provided by a specialist laboratory or testing house rather than
a hospital. In my judgment, there is a significant difference between
treating a patient who is admitted to hospital for that purpose and
carrying out tests on samples which are provided by a person who is a
patient. Such tests are not necessarily carried out in a hospital. The
special duty that exists between a patient and a hospital arises
because the hospital undertakes the care, supervision and control of
persons who, as patients, are in special need of care."
And Sedley LJ stated at paragraph 103 that "the facts do not fit the
paradigm of patient and healthcare provider". Finally this from Dyson
LJ at paragraph 93:
"The general rule [what I have called the paradigm case] is an
important feature of our law of negligence. It recognises that the
duty to take reasonable care may be discharged by entrusting the
performance of a task to an apparently competent independent
contractor. As Mason J pointed out in Kondis, the concept of a
personal non-delegable duty is a departure from the basic principles
of liability in negligence by substituting for the duty to take
reasonable care a more stringent duty, namely a duty to ensure that
reasonable care is taken. In my view, any departure from the general
rule must be justified on policy grounds. If the position were to be
otherwise, there is a danger that the general rule would become the
exception rather than the rule. As I understand it, that is not our
law."
ARGUMENT AND CONCLUSIONS
24.Mr Ford for the authority does not of course assert that there is
never "a duty to provide that care is taken" as opposed merely to a
duty to take care. Some instances, at least, are clearly established.
The judge below said:
"12... Such a duty has been held to exist only in well-defined
circumstances – employers' duties to take reasonable care for the
safety of their workmen, dangerous operations on the highway,
particularly hazardous operations, the escape of fire, and under the
rule in Rylands v Fletcher."
Well-defined or not, these are all cases where for different reasons
the neighbour relationship is especially close; where the
justification for imposing a duty is especially pressing. It may be
there is no more specific common factor that applies to all potential
instances of non-delegable duty. The editors of the current edition of
Clerk & Lindsell on Torts consider (paragraph 6-56) that "no general
principle can be stated and... the various types of case must be dealt
with individually". It is perhaps unsurprising that the Caparo formula
– fair, just and reasonable – is as generalised as it is. The appeal
to policy (A (A Child) paragraphs 53, 63, and Farraj paragraph 91)
does not, with great deference, refine the position, since broadly
(and the learning speaks broadly) the common law's evolution is always
based on policy.
25.Accordingly, if we are to find a sharper principle than Caparo's
rubric for the resolution of this case, it will have a relatively
narrow scope. I think it is to be found first in what the school and
hospital cases have in common. It may broadly be described as an
acceptance of responsibility to take care of a group of persons who
are particularly vulnerable or dependent. This is the essential basis
of the Australian learning: see in particular per Mason J in Kondis at
paragraph 33. No rational distinction can be drawn, I think, between
school and hospital for this purpose, and counsel suggested none.
26.But this approach describes no limit to the duty of the school or
hospital towards those in its charge beyond the fact of its having
accepted responsibility for their care. The law should not be so wide
as to impose a non-delegable duty upon the institution to secure that
care be taken to keep them safe from any mishap in any setting. In the
court below "Mr. Turner QC said he did not contend that if a child
went abroad under the aegis of a school (perhaps on some Gap or
similar scheme, or on a foreign exchange) to some foreign location
where he was injured, perhaps through the fault of the premises, the
school authority in the UK would owe him a duty which was
non-delegable" (judgment paragraph 54). And the judge referred to Cook
v Square D [1992] ICR 262, in which an engineer was injured at
premises in Saudi Arabia, belonging to a third party, where he had
been sent by his employers. His claim was dismissed in this court. The
judge below also gave an example (paragraph 55) of a school outing to
a zoo. Mishaps such as an accident in the bus on the way, or an animal
bite at the zoo, would not expose the school to liability where the
respective causes were the negligence of the bus driver and the
zookeeper. The accident en route calls to mind a case in which the
judgment was supplied to us by counsel after the argument was
concluded: Myton v Woods (1980) WL 149543, in which a child had been
injured on his way home from school, transport having been provided by
the local authority. This court held that the council's duty was
discharged by their having engaged a taxi firm: they were not liable
for the driver's negligence.
27.An appropriate qualification or limiting factor, restricting the
scope of the institution's non-delegable duty, therefore needs to be
articulated. Mr Ford submitted that it is to be found in the degree of
control enjoyed by the institution over the setting and circumstances
of the claimant's accident. It was the want of the employer's control
over the Saudi premises that lost the case in Cook v Square D. The
example of the outing to the zoo is analogous. A (A Child) and Farraj
both lend support, Mr Ford submitted, to the adoption of a limiting
factor based on degree of control. Mason J in Kondis (paragraph 33)
contemplated that the claimant's accident happens at the institution's
premises. Note also Fitzgerald v Hill paragraph 67 ("high degree of
control"). And want of control may be said to underscore the court's
reasoning in Lepore.
28.Clearly the presence or absence of control has been important in
some of the cases. But stated as a test or principle, I think it is
not free of difficulty. First, it is in the nature of a putative
liability for the act or omission of an independent contractor that
the impleaded party is less likely to be in a position to control his
agent's actions than if the latter were an employee; yet this is the
very class of liability postulated in this appeal. Secondly, if an
institution may avoid the impact of a non-delegable duty to someone in
its care simply by showing a want of control over the agent causing
the damage, there is a risk that the limiting factor becomes the
governing principle.
29.Moreover I entertain some doubt whether the critical factor which
led to the claim's failure in A (A Child) and in Farraj was, simply,
the defendant's want of control over the event causing the claimant's
injury. It is true that in paragraph 88 of Farraj Dyson LJ said of the
decision in A (A Child):
"[T]his court was not willing to extend the non-delegable duty of care
to a duty to ensure that the treatment in a hospital over which the
MoD had no control was carried out with due skill and care."
Lord Phillips' emphasis in A (A Child), however, was not so much upon
the presence or absence of control simpliciter, but on the importance
of the question whether in these cases the institution had itself
undertaken the care of the claimant: see paragraphs 53, 63 and 65.
30.Accordingly I think that control is too blunt a criterion to
constitute an apt qualification of the general principle giving rise
to the non-delegable duty of a school or hospital, which I have
broadly described as an acceptance of responsibility to take care of
the institution's clientele, being a group of persons who are
particularly vulnerable or dependent. The true test reflects the
factors which suggest that control is important, but has more nuance.
I would express it thus. A school or hospital owes a non-delegable
duty to see that care is taken for the safety of a 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.

(With appologies for the length of the quotation.)


Tomlinson LJ at

33.As Laws LJ has set out at paragraph 18 above, in A (A Child) this
court said of a finding by a lower court to the effect that, in
circumstances closely analogous to those we are considering on this
appeal, a non-delegable duty of care arose, that it "did not represent
the current state of English law" – see per Lord Phillips of Worth
Matravers MR at page 203C paragraph 52. In my view, in respectful
disagreement with Laws LJ, we are precluded from recognising the
non-delegable duty of care for which the Appellant has argued on this
appeal. I would add that I do not consider that an interlocutory
appeal offers an ideal opportunity to fashion the limits of any such
duty. I would be happier attempting to determine liability in the
light of findings of fact and at the same time as determining the
liability, if any, of others for the injuries suffered by the
Appellant in consequence of the tragedy which befell her in the
swimming pool in July 2000. However, within the confines of the
necessarily limited debate which this appeal permitted, the Appellant
has not in my view provided any justification for the imposition of
such a duty upon the authority. The imposition of such a duty would
have significant implications not just for all education authorities
but also for all those who operate schools and hospitals and, I
suspect, all those who operate institutions which provide what may
loosely be described as education or healthcare.

...


57.Laws LJ has in his judgment naturally sought to impose some
limitation upon the extent of the duty, a task not essayed by the
Appellant. Yet I respectfully consider that his formulation at
paragraph 30 above will leave an educational authority liable without
more for the negligence of the zoo-keeper's staff, to use the judge's
vivid example at paragraph 55 of his judgment of the child bitten by
an animal in consequence of such negligence whilst on a class outing
to a zoo as part of a school's regular schedule of important
educational visits. That result will follow unless, which I doubt, the
trip can be regarded as not part of the school's mainstream function
of education. Provided that undertaking a trip to the zoo in question
did not itself amount to negligence because, for example, of the known
incompetence with which the zoo is run, or, possibly, its lack of
adequate liability insurance, I do not consider that we have been
given any justification for such an outcome. Furthermore, the
imposition of such liability would be likely, I think, to have a
chilling effect on the willingness of education authorities to provide
valuable educational experiences for their pupils.

Kitchin LJ agreed with Tomlinson LJ at 59.

He found the decisions of the HCA persuasive.

However:

73.None of these cases involved circumstances similar to those of the
present case, where a non-delegable duty is sought to be imposed in
respect of the care of a pupil in an environment which was not under
the control of the school. For that the appellant turned to two other
cases.


77.In my judgment the characterisation of the special relationship
which has been found to justify the imposition of a non-delegable duty
of care in the cases to which I have referred also assists in defining
the limits of that duty. The essential elements of that special
relationship are that the hospital or school has undertaken the care,
supervision and control of a vulnerable person.


For myself, I find the judgment of Laws LJ the more persuasive, in principle.

G