text stringlengths 5 5.67k |
|---|
The Appellant was entrusted to the school for certain essential purposes, which included teaching and supervision. Ratio |
The swimming lessons were an integral part of the schools teaching function. Ratio |
They did not occur on school premises, but they occurred in school hours in a place where the school chose to carry out this part of its functions. Ratio |
The teaching and the supervisory functions of the school, and the control of the child that went with them, were delegated by the school to Mrs Stopford and through her to Ms Burlinson, and probably to Ms Maxwell as well, to the extent necessary to enable them to give swimming lessons. Ratio |
The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. Ratio |
It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty. Ratio |
I would accordingly allow the appeal and set aside the judges order striking out the allegation of a non-delegable duty. Ratio |
LADY HALE (with whom Lord Clarke, Lord Wilson and Lord Toulson agree) Ratio |
The common law is a dynamic instrument. Ratio |
It develops and adapts to meet new situations as they arise. Ratio |
Therein lies its strength. Ratio |
But therein also lies a danger, the danger of unbridled and unprincipled growth to match what the court perceives to be the merits of the particular case. Ratio |
So it must proceed with caution, incrementally by analogy with existing categories, and consistently with some underlying principle (see Caparo Industries plc v Dickman [1990] 2 AC 605). Ratio |
But the words used by judges in explaining why they are deciding as they do are not be treated as if they were the words of statute, setting the rules in stone and precluding further principled development should new situations arise. Ratio |
These things have been said many times before by wiser judges than me, but are worth repeating in this case, where we are accepting an invitation to develop the law beyond the point which it has currently reached in this jurisdiction. Ratio |
It is because we are doing that, and thus disagreeing with the conclusions reached in the courts below, that I am adding a few thoughts to the judgment of Lord Sumption, with which of course I agree. Ratio |
It is also important, so far as possible, that the distinctions produced by this process make sense to ordinary people. Ratio |
They should not, as Lord Steyn observed in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, 495, produce an imbalance in the law of tort which might perplex the man on the underground. Ratio |
In that case, their Lordships obviously thought that the public would be perplexed if the police officers who were present at the Hillsborough disaster could claim compensation for the psychiatric harm they had suffered as a result of the negligence of their fellow officers when the spectators who had suffered the same... |
In this case we have the reverse situation, where the public might well be perplexed if one pupil could sue her school for injuries sustained during a negligently conducted swimming lesson but another could not. Ratio |
Consider the cases of three 10-year-old children, Amelia, Belinda and Clara. Ratio |
Their parents are under a statutory duty to ensure that they receive efficient full-time education suitable to their age, ability and aptitude, and to any special needs they may have (Education Act 1996, section 7). Ratio |
Amelias parents send her to a well-known and very expensive independent school. Ratio |
Swimming lessons are among the services offered and the school contracts with another school which has its own swimming pool to provide these. Ratio |
Belindas parents send her to a large school run by a local education authority which employs a large sports staff to service its schools, including swimming teachers and life-guards. Ratio |
Claras parents send her to a small state-funded faith school which contracts with an independent service provider to provide swimming lessons and life-guards for its pupils. Ratio |
All three children are injured during a swimming lesson as a result (it must be assumed) of the carelessness either of the swimming teachers or of the life-guards or of both. Ratio |
Would the man on the underground be perplexed to learn that Amelia and Belinda can each sue their own school for compensation but Clara cannot? Ratio |
As lawyers, we know that the three girls fall into three different legal categories. Ratio |
Amelia (we will assume) has the benefit of a contractual obligation of the school to secure that care be taken for her safety. Ratio |
Belinda has the benefit of the rule which makes an employer vicariously liable for the negligence of its employees. Ratio |
Clara has the benefit of neither and can only succeed if the school has an obligation to secure that care be taken for her safety. Ratio |
In many ways, as Christine Beuermann points out in her valuable article Vicarious liability and conferred authority strict liability (2013) 20 Torts Law Journal 265, it is unfortunate that the courts have not considered both bases of liability in previous cases concerning harm suffered by school pupils. Ratio |
They are conceptually quite different, as Laws LJ made clear in the Court of Appeal at [2012] EWCA Civ 239; [2013] 3 WLR 853, paras 5 to 7, and Lord Sumption explains at paras 3 and 4 above. Ratio |
In the one case, the defendant is not liable because he has breached a duty which he owes personally to the claimant; he is liable because he has employed someone to go about his business for him and in the course of doing so that person has breached a duty owed to the claimant. Ratio |
In the other case, the defendant is liable because he has breached a duty which he owes personally to the claimant, not because he has himself been at fault, but because his duty was to see that whoever performed the duty he owed to the claimant did so without fault. Ratio |
No-one in this case has seriously questioned that if a hospital patient is injured as a result of a nurses carelessness it matters whether the nurse is employed by the hospital or by an agency; or if a pupil at school is injured by a teacher it matters whether the teacher is employed by the school or is self- employed.... |
Yet these are not employees of the hospital or school, nor can it be said that their relationship with the school is akin to employment in the sense in which the relationship of the individual Christian Brothers to their Order was akin to employment in the case of Various Claimants v Catholic Child Welfare Society and ... |
The reason why the hospital or school is liable is that the hospital has undertaken to care for the patient, and the school has undertaken to teach the pupil, and that responsibility is not discharged simply by choosing apparently competent people to do it. Ratio |
The hospital or school remains personally responsible to see that care is taken in doing it. Ratio |
As Lord Sumption has shown, the principle of personal responsibility of this sort is well-established in our law. Ratio |
The prime example is the responsibility of an employer to see that his employees are provided with a safe place of work, safe equipment and a safe system of working. Ratio |
As Lord Brandon of Oakwood put it in McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906, 919: The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reason... |
Despite such delegation the employer is liable for the non-performance of the duty. Ratio |
The duty may originally have been formulated in that way to get round the problem that, at common law, an employer could not be vicariously liable for injuries negligently caused by one of his employees to another. Ratio |
But McDermid shows that it not only survived the abolition of that doctrine by the Law Reform (Personal Injuries) Act 1948 but also applied where performance of the duty was delegated to an independent contractor. Ratio |
Also, given that there exists a contract of employment between employer and employee, the duty might perhaps have been formulated as an implied term in that contract, rather than in the law of tort. Ratio |
But it was not. Ratio |
As Lord Sumption has explained, both Lord Greene MR in Gold v Essex County Council [1942] 2 KB 293, 301, and Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343, 362-363, would have applied the same principle to get round what was then perceived to be another problem with the law of vicarious liability, that its... |
This provides a ready answer to the examples of the agency nurse and the supply teacher and I agree with Lord Sumption that the time has come to recognise that Lord Greene and Denning LJ were correct in identifying the underlying principle. Ratio |
I also agree that the principle will apply in the circumstances set out by Lord Sumption at paragraph 23, subject of course to the usual provisos that such judicial statements are not to be treated as if they were statutes and can never be set in stone. Ratio |
In my view, those features clearly apply to the delegation of the conduct of swimming lessons to the swimming teacher, Mrs Burlinson, and (subject to any factual matters of which we are unaware) to the lifeguard, Ms Maxwell. Ratio |
Taking care to keep the children safe is an essential part of any swimming lesson and of the responsibility which the school undertakes towards its pupils. Ratio |
That is what the life-guard is for. Ratio |
These features clearly would not apply to the negligent ice-cream vendor or zoo-keeper. Ratio |
They would not normally apply to the bus driver but they might do so if the school had undertaken to provide transport and placed the pupils in his charge rather than that of a teacher. Ratio |
The boundaries of what the hospital or school has undertaken to provide may not always be as clear cut as in this case and in Gold and Cassidy, but will have to be worked out on a case by case basis as they arise. Ratio |
I also agree with Lord Sumption that recognising the existence of a non- delegable duty in the circumstances described above would not cast an unreasonable burden upon the service-providers for all the reasons he gives. Ratio |
It is particularly worth remembering that for the most part public authorities would have been vicariously liable to claimants who were harmed in this way until the advent of outsourcing of essential aspects of their functions. Ratio |
As Lord Sumption also explains, it is not particularly helpful to plead that the school is in loco parentis. Ratio |
The school clearly does owe its pupils at least the duty of care which a reasonable parent owes to her children. Ratio |
But it may owe them more than that. Ratio |
Children rarely sue their parents for the harm that they suffer at their parents hands save where that harm is covered by an insurance policy. Ratio |
But that is not because the parents do not owe them a duty of care. Ratio |
Rather it is because any damages recovered will normally reduce the resources available to cater for the needs of the child and her family. Ratio |
The courts are also anxious not to impose an impossibly high standard of care in an ordinary domestic setting, as was common ground between the judges in Surtees v Kingston-upon-Thames Borough Council [1992] PIQR 101 (although speaking for myself, I share the dissenting view of Beldam LJ that the judges factual finding... |
But neither of those factors applies to institutional carers including schools. Ratio |
As Lord Hutton explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 588, when considering the liability of a local authority for the exercise of its parental responsibility towards a child in its care: I consider that the comparison between a parent and a local authority is not an apt one in the prese... |
Moreover a local authority employs trained staff to make decisions and to advise it in respect of the future of a child in its care, and if it can be shown that decisions taken in respect of the child constitute, in the circumstances, a failure to take reasonable care, I do not think that the local authority should be ... |
Both of those features apply as much to a school as to a local authority having parental responsibility for a child and constitute reasons for imposing upon it a responsibility which the law would not impose upon a parent. Ratio |
Finally, it is of interest to consider the objections raised by Professor Glanville Williams in his famous article Liability for Independent Contractors [1956] CLJ 180. Ratio |
I agree with Lord Sumption that it was unfair to criticise the concept of the non-delegable duty on the ground that it was not adequately explained. Ratio |
It has been. Ratio |
But his main criticism was one of policy that liability should rest solely with the person at fault. Ratio |
In his view The argument from poverty hardly applies to contractors, who are often far wealthier than their employers (195) and it may be questioned whether the social evil of the occasional insolvent tortfeasant contractor is of sufficient gravity to justify the somewhat complicated rules and the imposition of vicario... |
Such arguments scarcely apply in todays world where large organisations may well outsource their responsibilities to much poorer and un- or under-insured contractors. Ratio |
Nor can it be an objection that there may be more than one tortfeasor to hold liable. Ratio |
That, after all, is the situation in vicarious liability, as Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 made clear. Ratio |
Thus, for all those reasons, in agreement with Lord Sumption, I would allow this appeal and set aside the judges order striking out the allegation of a non-delegable duty. RPC |
The claimant Kevin Nunn was convicted in November 2006 of the murder of his girlfriend following the ending of their relationship. FAC |
His application for leave to appeal to the Court of Appeal (Criminal Division) was refused after hearing counsels written and oral representations on his behalf. FAC |
He continues to protest that his conviction was wrong. FAC |
The present proceedings for judicial review raise the question of the extent of any continuing duty of the police and the Crown Prosecution Service to assist him in gathering and examining evidence with a view to a further challenge to his conviction, which he asserts was a miscarriage of justice. Ratio |
It is common ground, and well understood, that while his trial was pending the Crown owed him the statutory duties of disclosure which are set out in sections 3 and 7A of the Criminal Procedure and Investigations Act 1996. Ratio |
That meant that it was the Crowns duty to disclose to him anything which had become known to it and which might reasonably be considered capable either of undermining the prosecution case or of assisting his own. Ratio |
At the heart of the submissions of Mr Southey QC for the claimant is the contention that this duty remains in existence in exactly the same form after as well as before his trial ended with his conviction. Ratio |
Whilst the statutory duties of disclosure are expressly framed as continuing only until the end of the trial, Mr Southey contends that those duties are only statutory enactments of the common law duty which pre-existed the 1996 Act, and that accordingly this common law duty remains binding on the Crown indefinitely. Ra... |
The basis for it, he argues, lies in the necessity of detecting and correcting any miscarriage of justice which may have occurred. Ratio |
Kevin Nunn had been the boyfriend of the deceased, Dawn Walker, for about two years prior to February 2005. FAC |
They did not live together and she may have had other boyfriends during this period. FAC |
It was agreed that on the evening of Wednesday 2 February their relationship was brought to an end in the course of a discussion between them at her home. FAC |
The Crown case was that there was a noisy argument, overheard by the neighbours and seen by one, and that Dawn had ended the affair against Nunns wishes. FAC |
His case by contrast was that it had been a matter of amicable agreement; there had been no argument and he had left well before the time spoken of by the neighbours. FAC |
After that evening Dawn was not seen alive again. FAC |
Her body was found by a river two days later on Friday 4 February. FAC |
Attempts had been made to set fire to it at a different place near the river and at some stage it had been immersed in water. FAC |
It had then been disposed in a sexually degrading position, unclothed except for a fleece over a sweatshirt pulled up above her breasts, which garments had been put on after death and burning in other clothes. FAC |
The exact cause of death could not be determined. FAC |
Her head and pubic hair had been shaved off, her ankles and Achilles tendon had been lacerated, and a length of reed had been inserted into her anus. FAC |
The body must have been somewhere else during Wednesday night and Thursday, for it would have been seen if then by the river. FAC |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.