Woodland v Essex County Council: Supreme Court decision on liability of schools for swimming accidents
The tragic consequences of swimming accidents involving schoolchildren, and the sometimes complex legal issues which can arise from such accidents, are illustrated by two recent judgments, one given by the Supreme Court and one by the Court of Appeal.
The recent Supreme Court decision in Woodland v Essex County Council centred around one issue; whether the county council owed a “non-delegable duty of care” towards the claimant following an incident on 5th July 2000.
The claimant, aged 10 at the date of the incident, was a pupil at Whitmore Junior School. The national curriculum at the time required various physical activities including swimming. Essex County Council, the respondent education authority, arranged for swimming lessons to take place at a local pool owned by Basildon Council. The school hired Direct Swimming Services, an independent contractor, to teach and supervise swimming classes. During one swimming lesson, the claimant was in a group being supervised by a swimming teacher and lifeguard, employed by the independent contractor. The claimant got into difficulties and suffered a serious brain injury as a consequence. It was alleged that these injuries were caused by the negligence of the independent contractors’ employees. The facts are to be decided in a later High Court case; the issue in the present appeal was whether the respondent education authority could also be liable towards the claimant due to a non-delegable duty of care towards her.
The claim was dismissed by the High Court. The appeal to the Court of Appeal was dismissed. The Court of Appeal made the following points:
It had long been established that there were strong policy reasons, because of the vulnerability of patients, for imposing liability on hospitals for any negligence in the delivery of treatments which were offered to patients, even for those treatments which were administered by a person who was not employed by the hospital. However, this principle had not been extended to circumstances where the treatment was carried out outside the hospital’s premises.
Imposing liability on the education authority on the facts of the case could have a significant chilling effect on the willingness of schools to provide valuable experiences, for example swimming lessons, for pupils.
So long as a public body knows the premises, knows that the premises appear to be safe and knows that they are staffed by competent and careful persons, their duty of care will be discharged. On the facts of the present case, the pool was staffed by a lifeguard and the swimming instructor was qualified.
On further appeal to the Supreme Court, that Court stated that as the swimming lessons took place during school hours and formed part of the school’s teaching functions, delegation to an independent contractor did not negate the education authority’s duty of care. In doing so, the Court commented that:
There are two types of non-delegable duty; where an independent contractor is hired by the defendant to perform some inherently hazardous function in the course of his work and secondly, as here, where performance of the duty remains personal to the defendant.
This type of case has three characteristics; the duty arises due to the antecedent relationship between the claimant and defendant, the duty is a positive one to protect a particular class of people against a particular class of risk and thirdly that the duty is personal to the defendant. As teaching swimming remained within the respondent’s functions, the fact that the respondent education authority hired the independent contractor to teach pupils in its care did not negate its liability.
Schools owe children a high duty of care due the pupils’ inherent vulnerability; the decision of the Supreme Court therefore did not place an unreasonable burden on service providers.
In the recent Court of Appeal case of Wilkin-Shaw v Fuller and Kingsley School Bideford Trustee Co Ltd (2013), the facts were that C, a fourteen-year old girl, went on a school trip to Dartmoor. The school had entered a team of children for an annual expedition. F, the team manager responsible for training the children for the challenge, organised a training weekend on Dartmoor. F and his assistants decided that the children could progress to remote supervision. This meant that the children could walk unaccompanied and meet at checkpoints. The group of children, which included C, arrived at the next checkpoint to find no teachers there. One of the teachers (T) who was supposed to meet them fell into a brook and managed to get out. A scoutmaster who had come across the group of children telephoned F and told him that the children were getting cold and should carry on walking. F advised the children by telephone not to cross the brook. The scoutmaster showed the children how to cross the brook. C fell into the brook and was drowned.
W, the administratrix of C’s estate, claimed compensation for negligence against F and the school which employed him for loss to C’s estate and psychiatric injury. At first instance, the claim was dismissed. W appealed to the Court of Appeal. On her behalf, it was argued that a high standard of navigational skills was required for those training children on Dartmoor, T had been negligent in failing to reach the checkpoint to meet the children, and the school was vicariously liable for her failure.
The Court of Appeal dismissed the appeal and made the following points:
Given the high standard reasonably to be expected, and the seriousness of the elementary errors made, T had been negligent.
It was highly speculative as to what would have happened if T had been at the checkpoint to meet the children. Her evidence had been that she would have checked the children’s fitness, but any question as to their route would have been put to F by telephone.
Even if T had remained at the checkpoint, the intervention of the scoutmaster would have broken the chain of causation.
Swimming accidents involving school pupils may also attract criminal sanctions. In July 2013 Leisure Connection Ltd, the operator of a leisure centre in Maldon, Essex, was fined £90,000 plus £100,000 costs following the death by drowning of a seven-year old girl. The fines were imposed under section 3 of the Health and Safety at Work, etc., Act 1974 for failure to ensure the health and safety of non-employees.
The HSE investigation identified serious failings with lifeguard cover at the pool. The company had failed to ensure that sufficient and suitably positioned lifeguards were always on poolside to ensure the safety of pool users.
A spokesperson for the HSE is reported to have commented after the case that members of the public visiting leisure centre swimming pools have an entitlement to expect that the operator paid to run them will deploy and train its staff so as to provide sufficient numbers of lifeguards in the right places so as to operate the pool safely.