In brief - A school's non-delegable duties of care may extend to the actions of third parties
Australian schools should be aware that delegating an activity to an independent contractor may not absolve the school from its non-delegable duty of care in respect of its students.
Legal position in Australia likely to be similar to that in the UK
Schools and their teachers owe a non-delegable duty of care to their students, save for intentional or criminal activities. There is little guidance on the extent to which that duty extends to situations where services provided by the school are carried out by third party independent contractors.
A recent case heard by the highest court in the United Kingdom, the Supreme Court (formerly the House of Lords), Woodland v Essex County Council  UKSC 66, provides a useful summary of the key principles as regards schools' non-delegable duties of care in the United Kingdom and the circumstances in which those duties will extend to the actions of third parties.
The position in Australia is likely to be similar and indeed, the UK Supreme Court cited with approval Australian authorities. The issues the case raises are timely, as schools are engaged in providing swimming lessons and in planning winter sports such as skiing for later in the year. (Please see also our earlier article District Court finds non-delegable duty of school during skiing excursion.)
Most Australian cases deal with adequacy of supervision by teachers
In New South Wales v Lepore  212 CLR 511, the High Court of Australia held that schools and teachers owe a non-delegable duty of care to ensure that all reasonable care is taken for the safety of students, although it does not extend to a duty to prevent intentional or criminal activities.
The existence of a non-delegable duty does not mean that the school guarantees or warrants that no harm will occur to students, i.e. it is not akin to a no fault liability system. Instead the "reasonableness" of the care taken will be considered and weight given to factors such as financial costs of preventative measures and the practicality of their implementation.
Australian cases concerning a school's liability have tended to focus on the adequacy of the supervision provided by the school's teachers. (See for example Commonwealth of Australia v Introvigne  150 CLR 258.)
Little guidance exists as regards the scope of a school's non-delegable duty to students where the supervision is provided by independent contractors, making the Woodland case of particular interest.
Did school owe duty of care for any negligence of third party contractor?
Annie Woodland was a 10 year old pupil at Whitmore Junior School, a government school for which Essex County Council was legally responsible. On 5 July 2000, Ms Woodland participated in swimming lessons that were required by the national curriculum and nearly drowned. Ms Woodland was resuscitated, but suffered severe hypoxic brain injury.
The school had contracted the lessons out to a third party independent contractor, Direct Swimming Services (DSS). Ms Woodland alleged that DSS negligently failed to notice that she was having difficulties in the water, which led to her injury.
The case turned on whether the school owed a non-delegable duty of care in respect of any negligence by DSS. It was a hearing on this preliminary point and so did not address whether DSS actually had been negligent.
Supreme Court finds that school owes duty of care for any negligent acts of swimming lesson provider
At first instance, and in the Court of Appeal, it was held that the education authority did not owe such a duty of care.
The Supreme Court unanimously overturned that decision and held that the school was subject to a non-delegable duty of care for any negligent acts of the DSS employees conducting the lessons.
The Supreme Court reviewed the case law in relation to non-delegable duties, including the Australian authorities. In summarising the principles relevant to establishing the existence of these duties in the leading judgment, Lord Sumption noted: "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 rise to non-delegable duties of care".
Defining characteristics of non-delegable duties
The Supreme Court identified five defining characteristics of non-delegable duties:
1. The claimant is a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury (for example a prisoner or a resident in a care home).
2. There is a prior relationship between the claimant and the defendant independent of the negligent act or omission which places the claimant in the actual custody, charge or care of the defendant and from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant. It is characteristic of such relationships that they involve an element of control over the claimant.
3. The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally, through employees, or through third parties.
4. The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed and the third party is exercising the defendant's custody or care of the claimant and accompanying element of control.
5. The third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.
Limitations on range of matters for which a school assumes non-delegable duties
The Supreme Court also noted that courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services and that a non-delegable duty of care should be imputed to schools only so far as would be fair, just and reasonable to do so.
In this regard, the Supreme Court noted that it was not an open-ended liability, with important limitations on the range of matters for which a school or education authority assumes non-delegable duties. In particular:
• 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).
• 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.
• 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.
• 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.
School found to be in breach of its duty if contractors were negligent
In relation to Ms Woodland, the Supreme Court concluded that the swimming lessons were an integral part of the school's teaching function which, whilst they did not occur on school premises, occurred in school hours in a place where the school chose to carry out this part of its function.
The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. As a result, if the contractors were negligent in performing those functions and the child was injured as a result, the education authority was in breach of its duty.
As noted above, each of the courts that considered the matter addressed the preliminary issue regarding the existence of a non-delegable duty only. The case must now return to the original court to determine whether DSS was negligent. The Supreme Court expressed some concern as regards whether taking a pleadings point that would not be determinative of the litigation either way was a satisfactory way to proceed.
Swimming lessons or sporting activities forming part of the curriculum
Whilst not binding on Australian courts, a decision of the highest court in the United Kingdom on analogous law would most likely be highly persuasive should a similar situation arise in Australia.
The decision in Woodland v Essex County Council is thus a useful reminder to Australian schools that delegating an activity to an independent contractor may not absolve the school (or its teachers) from their non-delegable duty of care in respect of their students.
If the function that has been delegated is one that the school would ordinarily carry out, for example swimming lessons or other sporting activities that form part of the curriculum, should the independent contractor be negligent and a student be injured as a result, the school risks finding itself liable as well.
What can schools do to protect their legal position?
Although schools should consider each situation very carefully and obtain legal advice as appropriate, potential issues to bear in mind are:
• the extent to which you know the third party contractor's track record and abilities to conduct the activity in question
• obtaining a contractual indemnity from the independent contractor
• ensuring that the contractor has sufficient liability insurance and that the school's own insurer is properly informed of the activity and the role of the independent contractor in that activity
Other service providers and the non-delegable duty of care
Finally, we note that, whilst the UK case and this note focus on schools, the principles are equally applicable to other situations where, by nature of the relationship between the parties (and in particular the element of control which one party has over the other), a non-delegable duty of care may arise.
Other service providers potentially in this situation are hospitals, nursing homes, prisons and childcare facilities