2013 10 Education

Friday 1 November 2013

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Woodland v Essex CC [2013] UKSC 66 (Lady Hale, Lords Clarke, Wilson, Sumpton, Toulson): An important judgment of the Supreme Court which extends the circumstances in which schools and local authorities will be liable for injuries caused to the children in their care that are caused by negligence. The Claimant was a pupil at Whitmore Junior School, for which Essex CC was responsible. WHen she was 10, she participated in a swimming lesson in which she nearly drowned. She was resuscitated but suffered a serious brain injury. The swimming lessons were part of the national curriculum requirements and had to take place during school hours. The school arranged for the lessons to be provided by an independent contractor. The Claimant's allegation was that the staff of the contractor negligently failed to notice taht the Claimant was in difficulties in the water and this was the cause of her injury. The Defendant local authority were said to be liable for the negligence because of a non-delegable duty of care they owed to the child. The Defendant succeeded in striking out the claim in both the High Court and the Court of Appeal (with Laws LJ dissenting) but the Claimant succeeded in the end. Lord Sumpton giving the leading judgment for the court defined the 'non-delegable duty of care' as a duty to procure that reasonable care is taken in the performance of the school's functions whoever the school arranges to perform those functions. The duty is as set out at paragraph 7 of his speech, a "positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury." This is significant in the context of the law of negligence, which is fault-based. He goes on to describe the duty owed by the school to arise as a result of the pre-existing relationship between the defendant (the local authority, which maintained the school) and the child. Lord Sumption goes on at paragrph 23 to set out 5 defining features of circumstances in which such a duty has already been found by the courts:

(i) Claimant is a child / patient / for some other reason is especially vulnerable or dependent on the protection of the defendant against risk of injury. This could be for example prisoners, residents in care homes, etc.

(ii) There is a pre-existing relationship between the claimant and the defendant, independent of the negligent act / ommission itself which (a) places the claimant in the actual custody / charge / care of the defendant; (b) from which it is possible to impute to the defendant an assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from acting in a manner which foreseeably will damage the claimant. It is characteristic of these relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another but is clearly very substantial in the case of school children.

(iii) the Claimant has no control over how the Defendant choses to perform those obligations.

(iv) the Defendant has delegated functions to a third party which is integral to the positive duty that has been assumped and the third party is exericising, for the purposes of the function delegated to him, the defendant's custody / care of the Claimant and the element of control that goes with it.

(v) the Third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

Lord Sumption still preserved the third limb of Caparo, i.e. the question of it being fair, just and reasonable for the duty to be imposed (paragraph 25). This is not meant to be a floodgates situation so be mindful of the restrictions Lord Sumption raises at paragraph 25(3).

Click here for judgment.

SA v LB of Camden Independent Appeals Panel [2013] EWHC 3152 (Admin) (Nicola Davies J): The Court found that an independent Appeal Panel, in upholding a decision to permanently exclude a child from school had acted unlawfully in failing to provide reasons for not giving effect to an agreement between the child's mother and the school whereby the school agreed it would not object to the decision being overturned on the basis that the child was not reinstated due to exceptional circumstances. The panel's failure was particularly concerning where the agreement had represented the child's best interests. Click here for judgment.

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