On 23 October 2013, the Supreme Court (previously known as the House of Lords) decided that schools owe a non-delegable duty of care to their pupils when they arrange for a third party to perform functions which the school has a duty to perform.
The court decided that a school owed a non-delegable duty of care to a pupil who was injured during a swimming lesson provided by a private contractor.
When can a non-delegable duty of care arise?
1. When the claimant is a patient or child or otherwise vulnerable or dependent on the defendant (in this case the school) against the risk of injury;
2. When there is an antecedent relationship between the claimant and the defendant that places the claimant in the defendant’s care, from which it is impossible to impute a positive duty on the defendant to protect the claimant from harm;
3. When the claimant has no control over how the defendant chooses to perform its obligations i.e. personally or through employees or third parties;
4. The defendant has delegated to a third party some function which is an integral part of its positive duty to the claimant and the third party is therefore exercising the defendant’s duty of care of the claimant and the control that goes with it;
5. A third party has been negligent in the exercise of that function.
The court illustrated the rationality and natural justice of the ruling by comparing three hypothetical children, Amelia who attends a private school, Belinda who attends a maintained school which employs a swimming teacher directly and Clara who goes to a maintained school which contracts out the provision of its swimming lessons.
The court said it could not be right that, if all three children were to suffer injury due to negligence during their swimming lessons, that Amelia and Belinda could sue their own school for compensation but Clara could not.
Clara’s claim would only succeed if the school had a non-delegable obligation to ensure her safety.
More examples of when schools do and do not owe a non-delegable duty of care to pupils:
A school installed a stainless steel wall mounted water fountain on an external wall forming part of the playground. A pupil was play fighting with his brother and accidentally punched the underside of the water fountain bowl injuring his thumb. The court of appeal decided that installation of the water fountain in the school playground did not amount to negligence.
This decision is useful in that it reminds schools that they do not owe a duty to pupils to safeguard them against any possible harm but rather a duty to ensure that they are responsibly safe in using the premises and that account must be taken of the fact that children may be less careful than adults.
Permanent exclusion of a child
On 18 October 2013, the High Court quashed a decision of the Independent Appeal Panel (IAP) to uphold a permanent exclusion due to a pupil’s poor behaviour. In doing so, the Independent Appeal Panel had failed to give effect to an agreement between the pupil’s solicitor, the school and the governing body requesting that Independent Appeal Panel overturn the permanent exclusion but not order reinstatement due to exceptional circumstances. The purpose of the agreement had been to acknowledge that the pupil needed specialist support.
The court of appeal found that the IAP should have given its reasons for not giving effect to the agreement in order to allow the parties to make representations.
When should a SEN assessment be undertaken?
In September 2013, the upper tribunal found that a Special Education Needs (SEN) assessment must be undertaken when requested even if the pupil was soon to be moving from primary to secondary school. They decided that whilst the pupil was soon moving to secondary school, this did not render an assessment unnecessary.
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