I think that these voluntarily assumed duties towards other people (and not just their property) are commonplace. Employers to employees. Hospitals to patients. Carriers to passengers. Occupiers to invitees (in common law jurisdictions unaltered by legislation). Schools to pupils. All of these involve positive duties towards others to ensure that care is taken of them, not just the negative duty to take care not to injure.
I do not myself think there is anything radical about it. The belief that the kind of duty in play in Donoghue v Stevenson represents the norm, and that any deviation from it is exceptional, is a modern phenomenon.
We need to march forward, boldly, into the nineteenth century.
It would be odd if we treated people worse than watches.
Of course it may be that my views are influenced by the fact that both of my children are currently at school, and one of them has swimming lessons at the local Iffley Road pool on Fridays.
Rob
________________________________________
From: Gerard Sadlier [gerard.sadlier@gmail.com]
Sent: 09 March 2012 13:20
To: Stevens, Robert
Cc: obligations@uwo.ca
Subject: Re: The Non-delegable Duties of Schools Toward Their Pupils in the Court of Appeal
Dear Rob,
Surely liability in the example you give is based on assumption of
responsibility, at least if there is no contract.
What makes this exceptional, where people as opposed to property are
concerned is that we would rarely expect one person to take that all
encompassing level of responsibility for other persons, as opposed to
property.
As noted at the end of my previous e-mail, a school's relationship to
its students is surely one of the exceptional situations in which I
think that kind of radical assumption of responsibility can be made
out.
But could the principle have much wider application, where people and
not property are concerned?
G
On 3/9/12, Stevens, Robert <robert.stevens@ucl.ac.uk> wrote:
> 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
>
>
>