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Non-Delegable Duties of Care

Over recent years public services have been delegated to a wide range of providers and public sector bodies have increased the amount of sub-contractors used to provide statutory services in a drive to increase efficiency and reduce costs.  Whilst this in itself is not necessarily a bad thing it has led to a number of difficulties in relation to the law of negligence.  

Over recent years public services have been delegated to a wide range of providers and public sector bodies have increased the amount of sub-contractors used to provide statutory services in a drive to increase efficiency and reduce costs.  Whilst this in itself is not necessarily a bad thing it has led to a number of difficulties in relation to the law of negligence.

The increased use of sub-contractors has led to questions over when public bodies will be liable for the performance of statutory duties they previously performed in-house but which have now been sub-contracted.  This has been recently analysed in the case of Woodland v Essex County Council and provides an interesting read for the entire public sector.  In this case a maintained school hired a private sector contractor to provide swimming lessons which were part of the national curriculum.  During the course of the swimming lessons, provided at the site chosen by the school, the employees of the contractor failed to notice one small girl getting into difficulty.  As a result the girl suffered severe brain damage caused by lack of oxygen.

The parents of the young girl argued that the Local Education Authority was responsible for the acts of the contractor and therefore liable for their negligence.  At first instance and at the Court of Appeal this argument was rejected however the Supreme Court held that the Local Education Authority could be liable for the negligence of its sub-contractors on the basis that the duty to provide the service was a non-delegable duty.

Here the Supreme Court are saying that whilst a public body may delegate responsibility to a contractor for a non-delegable duty they may not delegate the liability which can be incurred should the service be performed in a negligent manner.  This can be compared with ‘delegable’ duties where the public body will only be liable for its own negligence, for example in selecting the contractor.

The Supreme Court’s view was the provision by the school of swimming lessons was a non-delegable duty which the school, and so Local Education Authority, was ultimately responsible for irrespective of how the service was provided.  As a result the Authority could be held liable for the negligence of a sub-contractor.  The Court was however very clear that this level of duty was not necessarily limited to education providers suggesting that hospitals, prisons and care homes could also face similar non-delegable liability issues.  The fundamental principles when deciding whether a duty is non-delegable are as follows:

  1. The claimant must be a patient, child or for some other reason a specially vulnerable or dependent and therefore in need of the protection of the defendant from risk of injury.
  2. There must be a pre-existing relationship between the claimant and the defendant which places the claimant in the actual custody, charge or care of the defendant and from which it is possible to infer an assumption of a positive duty to protect the claimant from harm on the part of the defendant.  Here it is necessary to show that there is an element of control by the claimant over the defendant.
  3. The claimant must have no control over how the defendant chooses to perform its obligations.
  4. The defendant has delegated some function to a third party.
  5. The third party has been negligent.

It is possible to assume a wide range of circumstances in which such a relationship would arise and as such public authorities should consider carefully their statutory duties towards patients, children and other vulnerable parties, and in particular whether the duty is to provide a service, or simply to pay for it.  It has been made clear by the Court that a duty to arrange for a service to be provided or pay for a service will not create a non-delegable duty and other activities such as trips to theatres, zoos and museums or school trips during holidays will not create a non-delegable duty.

Although clarity is needed in relation to the boundaries of non-delegable duties Lady Hale has pointed out that these will be worked out on a case by case basis as they arise.  This is clearly not very convenient for Local Education Authorities, Schools, Academies and other public bodies who wish to plan ahead and limit their liability as much as possible.   Practical advice for such bodies would include revising their contracts with sub-contractors and creating far more rigorous procurement and contract management regimes to ensure that they know more about potential sub-contractors and monitor the actions of sub-contractors much more carefully.  Strong procurement and contract management will their help ensure public bodies risk exposure is as limited as possible.  Public bodies may also consider including indemnities into their contract with sub-contractors and ensuring that sub-contractors acquire adequate levels of insurance to support indemnities.  Indemnities are however only effective where the indemnity sub-contractor is able to pay or insurance cover is both sufficient and valid.  
 

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Published: Wednesday 12th March 2014
Categorised: Education

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