Duty of Care Could Not Be Delegated, Rules Court

A widely reported case has potential implications for those entrusted with the care or safety of others who delegate that responsibility – for example by the use of subcontractors.

The tragic case concerned a boy who suffered brain injuries whilst taking part in a swimming lesson organised by his school. The swimming lessons had been contracted out to an independent provider, which employed a qualified swimming instructor to provide the tuition and supervision.

The local authority (for the school) claimed that it was not liable for the boy’s injuries, arguing that it had delegated the duty of care it owed to the children to the service provider. On behalf of the boy, it was argued that the duty of care of the school was a direct (‘personal’) one which was not capable of being delegated: the council had a duty to take reasonable care to ensure the performance of functions it undertook even where these were undertaken indirectly.

The case went to the Supreme Court, which ruled that the duty of care could not be delegated by the council. It stated that a defendant will have a ‘non-delegable’ duty of care when:

  • The claimant is a vulnerable person (e.g. a child) or a person dependent on the defendant for protection against the risk of injury;
  • There is a pre-existing relationship between the claimant and the defendant which places the claimant in the care or custody of the defendant and from which it is reasonable to impute that the defendant owes the claimant a ‘positive duty’ to protect him or her from harm;
  • The defendant, not the claimant, has complete control over how the defendant’s obligations to the claimant are performed; and
  • The defendant has delegated those obligations to a third party and
  • the third party has been negligent in the performance of the delegated function.

On this analysis, the council was found liable for the child’s injuries.

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