INTRODUCTION

Any discussion on the subject of duty of care in the context of the law of negligence
must necessarily begin with the three-issue formula of the existence of a duty of care,
the breach thereof and the causal relationship of that breach to the ensuing damage
occasioned to the party to whom the duty of care is owed (‘complaining party’).

MEANING OF NEGLIGENCE
Before embarking upon a full discussion on the subject of this article, perhaps it is
useful to recall what negligence is, in law. Negligence, as a tort, is the breach of a
legal duty to take care, which results in damage, undesired by the defendant to the
plaintiff. This legal duty is best explained by the House of Lords (the precursor to the
Supreme Court) in Blyth v. Birmingham Waterworks Co. What is inherent in this
explanation of a duty of care in the tort of negligence is the use of ordinary care and
skill by a person owing a duty of observing such ordinary care and skill to another
person so as to ensure that no damage is occasioned to the other or his property due
to a breach of that duty. It is clear therefore that, the duty of care in the law of
negligence is a duty required of a reasonable man, and is confined to observing
ordinary care and skill.

THE CONSTITUENTS OF ACTIONABLE NEGLIGENCE

With a clear understanding of the meaning of negligence within the tort of negligence,
it is not difficult to see that an actionable negligence, meaning a claim for negligence
involves three (3) constituents namely;
(a) a legal duty to exercise due care by one to another within the scope of his/her duty;
(b) a breach of that duty; and
(c) consequential damage arising out of the alleged breach.

What is abundantly evident from the said constituents is that, the legal duty of care
within the tort of negligence, does not extend to the exercise of undue care. Such a
duty does not also extend beyond the scope of duty that a party is required to exercise.
This understanding of duty of care in the law of negligence is central to the subject of
this article.

THE EXISTENCE OF A LEGAL DUTY TO TAKE CARE

It is clear from the meaning ascribed to the term “negligence” in tort law, that, the
existence of a duty of care is germane for an actionable negligence before one can be
held liable in negligence. In the absence of such a duty, a claim for negligence cannot
stand in law and will be dismissed on that ground alone without the necessity of a court
considering the other two (2) constituents. The statement of Lord Atkin in the
celebrated case of Donoghue v. Stevenson needs a special and specific mention here
because it has paved the way for the expansion of duty of care situations from the
traditional approach of determining the existence of a duty of care.

In Donoghue v. Stevenson,[6] the Court found in favour of the existence of a duty of

care on the part of one to avoid acts or omissions which can be reasonably foreseen
to be likely to injure the other who is so closely and directly affected by the said acts
or omissions.
Donoghue v. Stevenson laid down the general principle of determining the issue as to
the existence or otherwise of a new duty of care situation on the application of the
principles of foreseeability and proximity.
In Blyth v. Birmingham Waterworks Company, the Court determined the existence of
a duty of care on the application of a ‘prudent and reasonable man’ test (‘an objective
test’). Both the approaches have found favour with the Apex Court of this jurisdiction.
A discussion on Donoghue v. Stevenson will not be complete without referring to the
statement of Lord MacMillan who emphasised that, “The conception of legal
responsibility may develop in adaptation to altering social conditions and standards.
The criteria of judgment must adjust and adapt itself to the changing circumstances of
life. The categories of negligence are never closed.”
This statement of Lord MacMillan reflects the readiness of the English Court to enlarge
or expand the instances of duty of care situations in the law of negligence so as to
meet with the demands and the needs of the changing social standards and
circumstances in society. Any discussion on whether a duty of care in the tort of
negligence should include a non-delegable duty to take care must therefore be
undertaken in the context of a ‘prudent and reasonable man’ test as propounded in
the decision of Blyth v. Birmingham Waterworks Company (as mentioned earlier), the
neighbour principle in Donoghue v. Stevenson and the open nature of the categories
of negligence as propounded by Lord MacMillan.

Non-delegable Duty of Care

The phrase non-delegable duty of care is not to be understood as suggesting that the
party owing a duty of care to another can delegate or pass on that duty to a third party,
and thereby be absolved from any liability flowing from the breach of that duty. The
law is very clear, that a Defendant who owes a duty to take reasonable care to avoid
a foreseeable risk of injury which eventuates causing damage to another, cannot avoid
liability by engaging a third party to carry out his responsibilities.
In the law of negligence, where a duty of care is established, the duty-ower will be held
liable to the person to whom the duty is owed for a breach of that duty. This is the type
of duty which is referred to as the paradigm duty of care in the law of negligence. The
paradigm duty of care in negligence is a duty by which the impleaded party (the party
sued), is answerable only for his own acts or omissions, occasioning the breach of a
duty of care imposed by law.
Implicit in this paradigm duty of care in the law of negligence is that, the act or the
omission to act complained of on the part of the duty-ower has got to be the act or
omission which falls within the scope of the duty of care of the duty-ower himself.
A duty to take reasonable care as opposed to a duty to ensure that reasonable
care is taken
The paradigm duty of care in the law of negligence discussed earlier herein which
represents the general rule of negligence, however, recognises that the duty to take
reasonable care could be discharged by the duty-ower by entrusting the performance
of that duty to an apparently competent independent contractor.
Dyson LJ in Farraj v. King’s Healthcare NHS Trust referred to this right of the duty-
ower to entrust the performance of his duty to an apparently competent independent
contractor as an important feature of the general law of negligence, the departure from
which must be justified on policy grounds.
The position taken by Dyson LJ in Farraj, represent the majority decision in Woodland.
For a better and clearer understanding of the decision in Woodland, it is necessary to
recall the facts of the case.

The facts of Woodland

The Claimant, a ten year old pupil of a junior school, suffered brain injuries when taking
her swimming lessons in the swimming pool.
The swimming lessons formed a part of the national curriculum and thereby the
curriculum of the school.
The school fell within the jurisdiction and control of the Essex County Council named
as the 4th Defendant in the case and referred to as the education authority in the
judgment.
The Claimant was sent for her swimming lessons to a swimming pool run by a different
County Council ie, Basildon County Council, which was named the 5th Defendant.
The swimming lessons were supervised by a swimming teacher and a life-guard who
were both employees of an entity which was running the swimming lessons at the pool.
The Claimant claimed through her father and next friend and her claim was that, the
school authority, Essex County Council, was in breach of its non-delegable duty to
secure that reasonable care is taken of pupils of the school at locations out of the
school grounds.
It was also the Claimant’s claim that, Essex County Council was vicariously liable in
negligence for the negligence of the providers of the swimming lessons, at the
swimming pool. She also claimed that the education authority was also vicariously
liable for the negligence of both the swimming teacher and the life-guard.
The allegation of vicarious liability for the negligence of the swimming lessons provider,
the swimming teacher and the life-guard was struck down for the reason that none of
them was an employee of Essex County Council (the education authority). There was
no appeal on this Order relating to this ruling on vicarious liability.
The case then proceeded on the one issue, whether, Essex County Council (the
education authority) was in breach of a non-delegable duty on its part in entrusting the
Claimant pupil to Basildon County Council, and thereby the swimming lessons
provider, the swimming teacher and the life-guard?
It is in this context that, the issue as to the non-delegable duty of the education
authority arose in this case.
It is then in this context too that the statement of Kitchin LJ, representing the majority
decision, referred to earlier, has to be clearly understood.

The majority decision in Woodland

The Court of Appeal, by a majority held that, the Essex County Council (the education
authority), did not owe a non-delegable duty to the Claimant, to ensure that reasonable
care was taken by the provider of the swimming lessons at the pool and their
employees, the swimming teacher and the life-guard.
As stated earlier when discussing the meaning of negligence, the duty of care in the
law of negligence is a duty which calls to be assessed and determined on the
application of the test of a reasonable man, and is confined to the observing of ordinary
care and skill and not any extraordinary care and skill on the part of the duty-ower. It
is obvious from the statements of Kitchin LJ that he was very much mindful of the test
for determining duty of care in the law of negligence as laid down in the earlier cases.
The education authority, had acted in a reasonable manner by observing the ordinary
care and skill required of it, in entrusting the care of the Claimant with parties who had
the necessary competence and skill to perform the duty so entrusted.

It is clear from the statements of Kitchin LJ that, if the education authority had not
acted in the manner in which it did, then the education authority can be said to have
not observed ordinary care and skill as required of it, and in consequence not met with
the reasonable man test. The education authority would have then been negligent for
not having exercised due care in ensuring that the parties to whom the Claimant/pupil
is entrusted is competent and possessed with the skill to perform the duties required
of them in ensuring the safety of the Claimant/pupil whilst in their charge.
Tomlinson LJ, who gave the main majority decision in Woodland,[25] in holding
against the contention of the education authority’s alleged non-delegable duty of care,
said that it did not represent the current state of English law, echoing what was stated
by Lord Phillips of Worth Matravers MR in A (A Child) v. Ministry of Defence. He went
on to say that the imposition of such non-delegable duty would have significant
implications not just for all education authorities, but also for all those who operate
schools and hospitals.
In coming to the decision which he did, Tomlinson LJ endorsed the approach taken by
the Court of first instance through Langstaff J. The approach taken by Langstaff J can
be summarised as follows:-
(a) an education authority cannot be held liable to a pupil who suffers injury not in the
school where the pupil is attached to, but outside the school under the arrangements
made by the education authority whereby specialist professionals are to provide the
activity for which the pupil has been sent out;
(b) such specialist professionals are not in the employ of the education authority and
therefore not in the control of the education authority.
Langstaff J’s example of a school outing to a zoo, albeit organised by the education
authority in charge of the school commended to Tomlinson LJ.
In principle, what Langstaff J said is that, for mishaps such as an accident at the
swimming pool where employees of a different entity were providing the swimming
lessons over which the education authority had no control, there was no question of
the education authority being held vicariously liable for the wrongs committed by them.
The Court of Appeal in its majority decision, through Tomlinson LJ, agreed with
that.[29]
The common factual feature in the example of the zoo as given by Langstaff J and the
facts of Woodland is that, in both instances, the mishap took place outside the school
precincts.
The education authority, in Woodland, had neither control over the swimming pool nor
the persons in charge of the swimming lessons.
The place of occurrence of the mishap was outside the control of the authority in
charge of the school, and the school had absolutely no control over the person in
charge of the venue of the mishap, or the person or persons with whom the charge of
the pupil was entrusted to. However, by virtue of their vocation, it is reasonable to
expect the zoo keeper and the providers of the swimming lessons which include the
swimming teacher and the life-guard to be possessed with the competence and skill
to discharge their duties. It is these considerations that obviously were in the minds of
the judges, in the majority in Woodland, in coming to the decision which they did.
The duty of care of the duty-ower is, in such circumstances, fulfilled upon the duty-
ower ensuring that, in entrusting the duty to another, the said persons are competent
to perform the duty entrusted to them, and that they possess the necessary skill to
perform the task so entrusted to them, by the duty-ower.
So long as these criteria in the entrusting of the duty are satisfied, there can be no
liability attached to the duty-ower in entrusting the duty to a third party.
The liability of the duty-ower in such instances will not be a liability for a breach in
delegating the duty but rather in not ensuring that the delegation is to a person or
persons possessed with the competence and skill to perform the duty so entrusted.
This is very crucial to the understanding of the majority decision in Woodland.
In coming to the decision which they did, the Judges, in the majority, were very much
mindful of the earlier decisions of the Courts of Australia and England as is evident
from the express references to those decisions in their judgments.
Indeed the very same decisions are found referred to in the minority judgment of Laws
LJ as well.

The minority decision in Woodland

The difference in the approach taken by the majority and the minority in Woodland can
be best explained as follows; whilst the majority decision places emphasis on the
element of control, Laws LJ, in the minority is of the view that control is not a
requirement in all instances.
As per Laws LJ, the facts of the case presented two elements, which are, that the
Claimant in the case was generally in the care of the education authority, at the time
of the mishap and that the swimming lessons formed a part of the national curriculum
which the school, under the administration of the education authority, was bound to
deliver. The presence of these two elements was, according to Laws LJ, sufficient to
hold the education authority liable in negligence. The reason being, according to him,
the presence of these two elements will be sufficient to form a neighbour relationship
between the education authority and the Claimant. It will therefore be “sufficiently close
to generate a non-delegable duty owed by the former to the latter”.
The majority judgment meets squarely with this approach as taken by Laws LJ, in the
minority.
Tomlinson LJ, taking the example as proffered by the Judge of first instance, of the
negligence of the zoo keeper and his staff, observed that the view taken by Laws LJ
will then mean the education authority being held liable for the negligence, of a child
bitten by an animal whilst the child is on a class outing to the zoo which

formed a part of the school’s regular schedule of important educational visits.

Tomlinson LJ did not see any justification for this view save in circumstances where
the education authority in charge of the school to which the Claimant belonged had
knowledge of the incompetence with which the zoo is run or, possibly the zoo’s lack
of adequate liability insurance. Tomlinson LJ emphatically stated that the imposition
of liability on the education authority on the facts and circumstances of the case would
be likely to have “a chilling effect on the willingness of education authorities to provide
valuable educational experiences for their pupils.” It is obvious from this statement of
Tomlinson LJ that the imposition of liability in the circumstances of the case will bring
a negative consequence to the implementation of swimming lessons provided by
schools to their pupils, as part of the national curriculum. Kitchin LJ, who gave the
supporting majority decision, in fact placed reliance on the case as pleaded, which is
that, the swimming lessons attended by the Claimant was not in an environment which
was under the control of the school and its staff in holding against the alleged non-
delegable duty of care on the part of the education authority and in consequence
negligence on the part of the education authority. Laws LJ found the justification in
pinning liability on the education authority for the reason that, like patients in hospitals,
pupils in schools belong to a vulnerable class of persons and accordingly a class of
persons who are “in special need of care”. On this, Laws LJ placed reliance on the
decisions of the High Court of Australia.
However, whilst accepting that pupils of schools, like patients in hospitals, belong to a
vulnerable class of persons and thereby in “special need of care”, those are cases
where a non-delegable duty was sought to be imposed in respect of the care of a pupil
in an environment which was not outside the control of the school,[38] as observed by
the majority decision in Woodlands through Kitchin LJ, In other words, those are cases
where a non-delegable duty of care was sought to be imposed in respect of the care
of a pupil in an environment which was under the control of the school itself and not
under the control of a third-party as was the factual position in Woodland.

Conclusion
Whilst noting the very strong sentiments expressed by Laws LJ in advocating a non-
delegable duty of care in the law of negligence, and noting that Laws LJ’s voice, on
point, is not a lone voice, the application of policy considerations by reference to what
is fair, just and reasonable, as propounded by Wilsons & Clyde Coal Co v. English to
extend the law of negligence to include a non-delegable duty of care on the part of the
duty-ower, has got to follow a serious determination of the implications of such an
extension. This is particularly so in instances like the Woodland case, where the
mishap and thereby the ensuing damage neither occurs at a venue in control of the
duty-ower, nor in instances where the duty-ower has control over the people to whom
the care of the person is entrusted to and where that person acknowledgedly
possesses the necessary competence and skill to do what he has been entrusted to
do by the duty-ower, to which the duty-ower himself acknowledgedly lacks.
Though the Court of Appeal had refused permission to appeal to the Supreme Court,
the latter had allowed the Claimant’s application for permission to appeal. It is
therefore interesting to see how the Apex Court is going to rule on this very important
issue of law in the English law of negligence. It will be particularly interesting to see if
the Apex Court will be inclined on policy considerations as dictated by the notions of
fairness, justice and reasonableness to extend the categories of the law of negligence
to include this important category of a non-delegable duty of care on the part of the
duty-ower. The decision of the Supreme Court will no doubt have a considerable
impact on the English law of negligence.