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Supreme Court rules that County Council own duty of care to pupil using contracted out service

A woman who suffered brain damage during a swimming lesson as a child may bring compensation claim

Posted on 24 October 2013

 The Supreme Court has handed down a significant ruling in the case of a woman who suffered serious brain damage as a child that has left her unable to manage her own affairs.  Annie Woodland had to be resuscitated after nearly drowning during a swimming lesson as a child.  She was a pupil at Whitmore Junior School in Basildon, Essex, and was taking part in a school swimming lesson at a local pool when the incident happened. 

Her family had brought a compensation claim against Essex County Council arguing that the county council owed Ms Woodland a duty of care, even though the swimming lesson had not happened on school property, and had been contracted out to a private supplier. Their claim for £3m was rejected in 2011, a decision that was upheld by the Court of Appeal. The ruling by five judges in London that local education authority, Essex County Council, owed a "non-delegable duty of care" means that the case will now return to the High Court to assess whether Ms Woodland was in fact a victim of negligence. The family allege that the brain damage she suffered was because of the negligence of a swimming teacher and lifeguard who were not employed by the education authority.

Lord Sumption said parents were required to entrust their child to a school and had no influence over arrangements a school may make to delegate or over the competence of "delegates", and concluded that if third parties were found to be negligent Essex County Council would be in breach of a duty of care.

He added: "Schools are employed to educate children, which they can only do if they are allowed authority over them. That authority confers on them a significant degree of control.

"When the school's own control is delegated to someone else for the purpose of performing part of the school's own educational function, it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate."

It was not an "open-ended liability", he pointed out, "for there are important limitations on the range of matters for which a school or education authority assumes non-delegable duties".

Lord Sumption continued: "They are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions).

Education and abuse law specialist Alison Millar welcomes the ruling which has implications for both schools and other public authorities.

She said:

“I welcome today’s judgment which confers a duty of care on a local authority for the actions of a state school which had chosen to outsource one of its national curriculum lessons to a private supplier.  This also may have implications for other public authorities including the NHS which is increasingly choosing to contract with the private sector to provide medical treatment and mental health care, and local authorities who outsource care services.  In some circumstances, this may allow patients who receive negligent care to bring a claim directly against the public authority.”