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The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. PRE |
It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. PRE |
It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. PRE |
It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score. PRE |
33. PRE |
The fact that the Commonwealth delegated the teaching function to the State, including the selection and control of teachers, does not affect its liability for breach of duty. PRE |
Neither the duty, nor its performance, is capable of delegation. PRE |
It is not enough for the Commonwealth, in providing a school, to leave it to the State to take care for the safety of the children attending the school. PRE |
Nor does it matter that the Commonwealth does not control and cannot direct the teaching staff in the performance of its duties. PRE |
That would be a relevant factor if the question was: are the teachers servants of the Commonwealth? However, that is not the issue here. PRE |
The issue is whether the Commonwealth is liable as a school authority when it establishes the school and arranges with the State to run the school on its behalf. PRE |
In my opinion, the Commonwealth does not cease to be liable because it arranges for the State to run the school on its behalf. PRE |
34. ...the Government of the State of New South Wales is not a subcontractor. PRE |
What it did was to supply the services of its employees to perform for the Commonwealth a task which the Commonwealth had undertaken, i.e. the establishment and operation of schools in the Australian Capital Territory. PRE |
The High Court of Australia returned to this question in Kondis v State Transport Authority (1984) 154 CLR 672. PRE |
Kondis was not about schools. PRE |
It concerned the duty of care owed by an employer. PRE |
The case was argued on the basis of vicarious liability, but Mason J, with whom Deane and Dawson JJ agreed, decided it on the ground that the relevant duty was non-delegable. PRE |
For present purposes, the most valuable part of his analysis is a section at paras 29-33 in which he took the opportunity to consider more generally the basis on which the law holds some duties to be non-delegable: 32. ...when we look to the classes of case in which the existence of a non-delegable duty has been recogn... |
The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. PRE |
The hospital undertakes the care, supervision and control of patients who are in special need of care. PRE |
The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation... |
In Burnie Port Authority v General Jones Pty (1994) 179 CLR 520, the High Court of Australia was concerned with a case in which fire escaped from the defendants property and damaged the Plaintiffs goods which were stored on an adjoining property. PRE |
The case is best known for subsuming the rule in Rylands v Fletcher within the law of negligence, a step which has not been taken in England: Transco Plc v Stockport Metropolitan Borough Council [2004] 2 AC 1. PRE |
Viewing it as part of the law of negligence, the court considered the case-law on non- delegable duties and adopted the general statement of the test based on control which had been proposed by Mason J in Kondis. PRE |
The difference was that this being a dispute about the duties arising from the occupation of land, they were talking about control over the source of the hazard rather than (as in Kondis) control over the Plaintiff. PRE |
At para 37, the Court observed: The relationship of proximity which exists, for the purposes of ordinary negligence, between a plaintiff and a defendant in circumstances which would prima facie attract the rule in Rylands v Fletcher is characterized by such a central element of control and by such special dependence an... |
One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. PRE |
The other party to that relationship is a person outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger... In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. PRE |
Finally, in New South Wales v Lepore (2003) 212 CLR 511, the High Court of Australia revisited the question of the non-delegable duty owed by schools to pupils. PRE |
It was a difficult case arising out of sexual assaults on children by a teacher in circumstances where there was no allegation and no finding of vicarious liability by the courts below, perhaps because criminal assaults were thought to be outside the course of a teachers employment (the case was pleaded and tried befor... |
The Court was divided. PRE |
Several of its members thought that vicarious liability was a simpler route to liability than a non-delegable duty of care. PRE |
Nonetheless, by a majority of 4-3 (Gaudron, McHugh, Gummow and Hayne JJ) the Court held that the schools owed a non-delegable duty. PRE |
There are differences of emphasis among the majority. PRE |
Gaudron J, citing the judgment of Blackburn J in Hughes v Percival, based her view on (i) the fact that the school owed a positive duty to take reasonable care for the safety of children in their charge, and not merely a negative duty to avoid the consequences of a foreseeable risk of injury (paras 104-105), and (ii) t... |
McHugh J considered that the non-delegable duty arose upon the enrolment of the child para 142. PRE |
In each case, he observed at para 139, the duty arises because the school authority has control of the pupil whose immaturity is likely to lead to harm to the pupil unless the authority exercises reasonable care in supervising him or her and because the authority has assumed responsibility for the child's protection. P... |
Gummow and Hayne JJ were more cautious. PRE |
At para 255, they suggested that in each case in which a non-delegable liability had been held to exist, there was: ...a relationship in which the person owing the duty either has the care, supervision or control of the other person or has assumed a particular responsibility for the safety of that person or that person... |
It is not suggested, however, that all relationships which display these characteristics necessarily import a non-delegable duty. PRE |
In what circumstances will a non-delegable duty arise? PRE |
The main problem about this area of the law is to prevent the exception from eating up the rule. Ratio |
Non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based, and are therefore exceptional. Ratio |
The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree. Ratio |
In particular, the question cannot depend simply on the degree of risk involved in the relevant activity. Ratio |
The ordinary principles of tortious liability are perfectly capable of answering the question what duty is an appropriate response to a given level of risk. Ratio |
In my view, the time has come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given... |
If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features: (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Ratio |
Other examples are likely to be prisoners and residents in care homes. Ratio |
(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to pr... |
It is characteristic of such 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 schoolchildren. Ratio |
(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties. Ratio |
(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendants custody or care of the claimant and the element of control tha... |
(5) 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. Ratio |
In A (Child) v Ministry of Defence [2005] QB 183, at para 47 Lord Phillips of Worth Matravers MR, delivering the leading judgment in the Court of Appeal, suggested that 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 ... |
This is undoubtedly a fundamental feature of those cases where, in the absence of a relevant antecedent relationship, the defendant has been held liable for inherently hazardous operations or dangers on the public highway. PRE |
But I respectfully disagree with the view that control of the environment in which injury is caused is an essential element in the kind of case with which we are presently concerned. PRE |
The defendant is not usually in control of the environment in which injury is caused by an independent contractor. PRE |
That is why as a general rule he is not liable for the contractors negligence. PRE |
Where a non-delegable duty arises, the defendant is liable not because he has control but in spite of the fact that he may have none. PRE |
The essential element in my view is not control of the environment in which the claimant is injured, but control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility. PRE |
The actual result in A (A Child) was therefore correct. PRE |
The Ministry of Defence was not responsible for the negligence of a hospital with whom it contracted to treat soldiers and their families. PRE |
But the true reason was the finding of the trial judge (quoted at para 28 of Lord Phillips judgment) that there was no sound basis for any feeling... that secondary treatment in hospital was actually provided by the Army (MoD) as opposed to arranged by the army. PRE |
There was therefore no delegation of any function which the Ministry had assumed personal responsibility to carry out, and no delegation of any custody exercised by the Ministry over soldiers and their families. PRE |
For exactly the same reason, I think that the Court of Appeal was right in Myton v Woods (1980) 79 LGR 28 to dismiss a claim against a local education authority for the negligence of a taxi firm employed by the authority to drive children to and from school. PRE |
The school had no statutory duty to transport children, but only to arrange and pay for it. PRE |
As Lord Denning MR put it, the authority was not liable for an independent contractor except he delegates to the contractor the very duty which he himself has to fulfil. PRE |
Likewise, the Court of Appeal was right in Farraj v Kings Healthcare NHS Trust [2010] 1 WLR 2139, to dismiss a claim against a hospital which had employed an independent laboratory to analyse a tissue sample for a patient who was not being treated by the hospital and was therefore not in its custody or care. PRE |
As Dyson LJ put it at para 88, the rationale of any non-delegable duty owed by hospitals is that the hospital undertakes the care, supervision and control of its patients who are in special need of care. PRE |
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. PRE |
The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. Ratio |
A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. Ratio |
But I do not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above. Ratio |
My reasons are as follows: (1) The criteria themselves are consistent with the long-standing policy of the law, apparent notably in the employment cases, to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control o... |
Schools are employed to educate children, which they can do only if they are allowed authority over them. Ratio |
That authority confers on them a significant degree of control. Ratio |
When the schools own control is delegated to someone else for the purpose of performing part of the schools own educational function, it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate. Ratio |
(2) Parents are required by law to entrust their child to a school. Ratio |
They do so in reliance on the schools ability to look after them, and generally have no knowledge of or influence over the arrangements that the school may make to delegate specialised functions, or the basis on which they do so, or the competence of the delegates, all of which are matters about which only the school i... |
(3) This is not an open-ended liability, for there are important limitations on the range of matters for which a school or education authority assumes non-delegable duties. Ratio |
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). Rati... |
In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance. Ratio |
They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Ratio |
Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours, to take some of the examples canvassed in argument and by Laws LJ in his dissenting judgment. Rat... |
(4) It is important to bear in mind that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable. Ratio |
The recognition of limited non-delegable duties has become more significant as a result of the growing scale on which the educational and supervisory functions of schools are outsourced, but in a longer historical perspective, it does not significantly increase the potential liability of education authorities. Ratio |
(5) The responsibilities of fee-paying schools are already non-delegable because they are contractual, and the possibility of contracting out of them is limited by legislation. Ratio |
In this particular context, there seems to be no rational reason why the mere absence of consideration should lead to an entirely different result when comparable services are provided by a public authority. Ratio |
A similar point can be made about the technical distinctions that would otherwise arise between privately funded and NHS hospital treatment. Ratio |
(6) It can fairly be said that the recognition of a non-delegable duty of care owed by schools involves imputing to them a greater responsibility than any which the law presently recognises as being owed by parents. Ratio |
Parents would not normally incur personal liability for the negligence of (say) a swimming instructor to whom they had handed custody of a child. Ratio |
The Appellants pleaded allegation that the school stood in loco parentis may not therefore assist their case. Ratio |
The position of parents is very different to that of schools. Ratio |
Schools provide a service either by contract or pursuant to a statutory obligation, and while LEA schools do not receive fees, their staff and contractors are paid professionals. Ratio |
By comparison, the custody and control which parents exercise over their children is not only gratuitous, but based on an intimate relationship not readily analysable in legal terms. Ratio |
For this reason, the common law has always been extremely cautious about recognising legally enforceable duties owed by parents on the same basis as those owed by institutional carers: see Surtees v Kingston-on-Thames Borough Council [1992] PIQR 101, 121 (Beldam LJ); Barrett v Enfield London Borough Council [2001] 2 AC... |
Application to the present case Ratio |
In my opinion, on the limited facts pleaded or admitted, the respondent education authority assumed a duty to ensure that the Appellants swimming lessons were carefully conducted and supervised, by whomever they might get to perform these functions. Ratio |
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