England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISON
MR JUSTICE LANGSTAFF
9MA91650

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/03/2012

Lord Justice Laws:

INTRODUCTION

1. This is an appeal in a personal injury action, with permission granted by the judge below, against the decision of Langstaff J given in the Queen's Bench Division on 17 October 2011 by which he held that the appellant's claim to be owed a "non-delegable" duty of care by the respondent education authority was bound to fail on the pleaded facts, and accordingly struck out that part of the pleading which so alleged.

THE APPELLANT'S PLEADED CASE

2. The appellant, who by her father and next friend is the claimant in the action, was at the material time a pupil at Whitmore Junior School at Basildon in Essex. The school was the responsibility of the respondent, the fourth defendant, to which I will refer as "the authority". The appellant's pleaded case is described by the judge below as follows:

"2. The facts that give rise to this preliminary issue occurred on the 5^th of July 2000. The claimant was then 10 years old. She went with her class to the Gloucester Park swimming pool in Basildon. The class was divided into groups, according to their ability to swim. She was in a group of better swimmers, who used the deep pool. In groups of three or four abreast, at 5 to 10 second intervals, they were to dive into the pool at the deep end, swim the length to the shallow end, exit the pool, and return by the pool side to the deep end ready to swim the next length when it was their turn to do so. The swimming lesson was supervised by a swimming teacher, who was in the pool, and by a life guard, who was at the side of the pool.

3. The swimming pool facilities were not those of the Education Authority. They were run by Basildon Council, the Fifth Defendant. Nor were the life guard (the Third Defendant) and swimming teacher employees of the school. They were employees of the second defendant, Beryl Stopford, who traded as Direct Swimming Services, which provided swimming lessons for school children, and which organised the arrangements under which the children had their lessons, including the availability of the pool for that use.

4. At some point during the lesson, when the claimant was in the pool, she was seen no longer to be swimming front crawl (as she had been) toward the shallow end, but was hanging vertically in the water. There is a dispute of fact as to whether others of her classmates drew the life guard's attention to this, or whether she noticed it for herself. The claimant was pulled from the pool. Resuscitation was attempted. It may be in dispute whether she was breathing spontaneously at the pool side, or whether her breathing ceased subsequently in an ambulance on its way to hospital. It is not, however, disputed that a consequence of the sad events of the 5^th of July was she suffered severe hypoxic brain injuries. If liability is established, damages will be substantial.

5. The legal relationship between the fourth defendant, Essex County Council..., the Education Authority responsible for Whitmore Junior School..., and the third defendant was indirect. She was an employee of the Second Defendant, an independent contractor to Essex.

6. By paragraph 20 of the claim, it is contended that Essex owed the claimant 'a non-delegable duty of care in the capacity loco parentis'. In a pleading comprehensive in its allegations, the claimant asserts that Essex is vicariously liable for the negligence of both the second defendant and the life guard, and directly liable for failure itself to take reasonable care to ensure that the second defendant was an appropriate and competent independent contractor to whom to delegate responsibility for the provision of swimming lessons and associated life-guarding services.

7. Nowhere in the re-amended particulars of claim is the precise nature of the alleged non delegable duty set out, beyond the phrase 'in the capacity loco parentis'."

The assertion of a "non-delegable duty of care in the capacity loco parentis" owed by the authority is made at paragraph 3 of the amended particulars of claim.

3. In fact the appellant's case was put in three ways. It was first alleged that the authority owed a duty to take reasonable care to ensure that their independent contractor, the second defendant (Beryl Stopford trading as Direct Swimming Services), was careful and competent so that her employees – the lifeguard (the third defendant) and the swimming teacher – were suitably qualified and experienced: paragraphs 5 and 21(a) of the amended particulars of claim. This allegation, and the allegation that the duty thus pleaded was breached, were not the subject of any application to strike out and so remain awaiting trial. Secondly it was alleged (amended particulars of claim paragraph 20) that the authority was vicariously liable for the negligence of the second and third defendants and of the swimming teacher. This allegation was struck out by the learned judge: see paragraph 13 of the judgment and the footnote to that paragraph. There was no question of any of these three individuals being employees of the authority, and therefore no question of the authority being vicariously liable for wrongs committed by them. There is no appeal against the order striking out this part of the claim. The third allegation against the authority was that of a "non-delegable duty", and it is with this alone that the appeal is concerned. The form which the strike-out order took was merely the deletion of the adjectival phrase "non-delegable" in paragraph 3 of the amended particulars of claim.

THE JUDGE'S CONCLUSION

4. The judge's judgment is very painstaking and contains a detailed review of the learning, both of our courts and those of other jurisdictions, notably Australia. At paragraph 72 he concludes that the claim that the authority "owed a non-delegable duty to the claimant…. [was] bound to fail" on the pleaded facts. He did not accept that any court could reasonably be persuaded on policy grounds to uphold such a duty. He set out, in summary form, thirteen reasons why that was so. The reasons encapsulate what the judge drew from the learning which he had considered.

THE NATURE OF THE DUTY ALLEGED

5. It is important to appreciate what is the precise nature of the duty for which the appellant contends. It is a duty to ensure that reasonable care be taken to secure the appellant's safety in the course of the swimming lesson. This is a step beyond the paradigm of a duty of care in the law of negligence. The paradigm is a duty by which the impleaded party is answerable only for his own acts or omissions. He is obliged to take care himself; not to see that others take care. But what is alleged here is "a duty not merely to take care, but a duty to provide that care is taken" (The Pass of Ballater [1942] P 112 per Langton J at 117). The duty will thus be violated not only by want of care by the impleaded party, but also by his agents, whether they are his employees or independent contractors.
6. There is another class of case which is very familiar in the law of negligence. This is the case of vicarious liability. An employer is liable for damage caused by the negligence of his employees acting in the course of their employment. As Sedley LJ pointed out at paragraph 100 in Farraj v King's Healthcare NHS Trust [2010] 1WLR 2139 (to which I will have to refer in greater detail), this principle is to be found as far back as Mitchil v Alestree (1676) 1 Vent. 295. It is radically distinct from the paradigm, for it imposes liability on the employer though he does not or may not owe, and has not broken, any duty of care whatever. Only the employee owes the duty, and only he commits the breach; but the law makes the employer responsible. The rule's rationale no doubt involves "...the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant" (Fleming, The Law of Torts, 9^th edn. (1998) pp. 409-410, cited by Auld LJ in Majrowski v Guy's and St Thomas's NHS Trust [2005] QB 848, quoted in turn by the judge below at paragraph 14 of his judgment).
7. These classifications are elementary, but they make for clarity. They show that the greater exception to the law's ordinary approach to liability for negligence is the case of vicarious liability, and not the case of duty and breach contended for in this appeal. Vicarious liability imposes legal responsibility on a party owing no relevant duty; by contrast the case in hand, just like the paradigm, fixes the duty-ower with responsibility. It is true the duty-ower will be liable for the negligent act or omission of another; that is the measure of the case's departure from the paradigm. In D F Estates Ltd v Church Commissioners [1989] 1 AC 177, 208, Lord Bridge of Harwich considered however that this was no true exception to the general rule, and drew a contrast with the case of vicarious liability. He stated that liability of the kind now contended for depends "upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant" (citing Clerk & Lindsell on Torts, 15^th edn. (1982) paragraph 3-37).
8. There is a further short point to be made as to the language in which the duty claimed by the appellant has been expressed. It has generally been described in the cases as a non-delegable duty. As I have shown, that is how it was referred to in the appellant's pleading. The expression refers, of course, to the fact that in such cases the impleaded party is likely to have entrusted the care of the claimant to another; and had he not done so would himself have owed a duty of care. However there is, I think, a danger that it may mislead, for it suggests that there may be circumstances in which the law allows a duty of care to be delegated. In fact there is no instance of a delegable duty of care in the law of negligence; and this needs to be kept in mind if we are to avoid confusion.
9. We can see, then, that the question here is not whether an existing duty can be delegated, nor whether to allow so radical a departure from the paradigm duty of care as is found in the rule of vicarious liability. It is whether in the circumstances we should acknowledge "a duty not merely to take care, but a duty to provide that care is taken". To that extent the law would travel beyond the paradigm. To decide whether it should, the starting point must be the reasoning in Caparo Industries plc v Dickman [1990] 2 AC 605, 618: is the imposition of a duty of care in the circumstances fair, just and reasonable? However such a starting-point is very general and broad-based; it offers, with great respect, little guidance for a principled enquiry whether the court should accept the suggested step beyond the paradigm. An altogether sharper edge is needed. It is said that it can be found in the special position of a schoolchild, analogous to that of a hospital patient. Both are persons in need of particular care, for which they place themselves or are placed in the hands of the school or hospital; and the school or hospital undertakes to look after them accordingly. That being so, the neighbour relationship (to use the familiar language of Donoghue v Stevenson [1932] AC 562) is especially close. Mr Turner QC for the appellant submits that in these circumstances the step beyond the paradigm is well justified.

THE CASES

AUSTRALIA

10. The step has been taken in the High Court of Australia. A leading statement of the law is that of Mason J as he then was in Kondis v State Transport Authority (1984) 152 CLR 672 at paragraphs 32 – 33:

"32... However, when we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed...

33. The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."

11. In Kondis Mason J referred to what he had earlier said in Commonwealth v Introvigne (1982) 150 CLR 258, and that case has been much referred to in the course of argument before us. Mr Ford QC for the authority would have us sideline it on the ground that the issue was whether the Commonwealth of Australia could delegate its statutory duty of care to the State of New South Wales; and of course no such question arises here. But I do not think that Introvigne can be so readily dismissed. It contains dicta of high persuasive authority which are very much in point in this appeal. Mason J's judgment refers, among other cases, to Gold v Essex CC [1942] 2 KB 293 and Cassidy v Ministry of Health [1951] 2 KB 343 in this jurisdiction, in which however the judgments of Lord Greene MR and Denning LJ respectively were, at the time, virtually lone voices in support of the duty now contended for. Then Mason J said this:

"26. The liability of a school authority in negligence for injury suffered by a pupil attending the school is not a purely vicarious liability. A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance. In Carmarthenshire County Council v. Lewis [1955] AC 549 the House of Lords held that the authority was liable for an injury to a motorist caused by a little child wandering onto the road through an unlocked gate at the school due to the failure of the authority to take reasonable steps to prevent the escape of the child...

28. The duty thereby imposed on a school authority is akin to that owed by a hospital to its patient. As Lord Greene MR observed in Gold... at p 304, the liability of the hospital arises out of an obligation to use reasonable care in treatment, the performance of which cannot be delegated to someone else, not even to a doctor or surgeon under contract for service, according to Denning LJ in Cassidy... at p 364; cf. Hillyer v. Governors of St. Bartholomew's Hospital [1909] 2 KB 820; Collins v. Hertfordshire County Council [1947] 1 KB 598...

30. There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J in Ramsay v. Larsen (1964) 111 CLR, at p 28. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants."

In Introvigne Brennan J also cited Kitto J in Ramsay v Larsen, and continued:

"8... The primary duty of the school authority is, so to speak, antecedent to its employment of staff. The existence and nature of that duty do not depend upon the staffing arrangements which it makes; nor is the duty discharged or extinguished by making arrangements for the staffing of the school. Though the primary duty, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school, a school authority's liability for damage caused by a failure to provide supervision is founded on the school authority's failure to discharge a duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil. Of course, a teacher may be under a like duty to the child, but the teacher's duty is not determinative of the duty of the school authority."

12. This learning was followed by the New South Wales Supreme Court in De Beer v State of New South Wales [2009] NSWSC 364, in which a pupil had suffered an electric shock from a power board during an Outward Bound course organised and equipped by a third party. In Fitzgerald v Hill & Ors [2008] QCA 283 McMurdo P in the Supreme Court of Queensland undertook a comprehensive overview of the Australian learning, beginning with Ramsay v. Larsen. He cited Introvigne in some detail, and noted (paragraph 58) that Mason J's observations in Kondis had been approved by the High Court in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. Then at paragraphs 66 – 67 McMurdo P said this:

"66. The following principles relevant to the present case can be discerned from the discussion above. The non-delegable duty of care is a special duty to ensure that reasonable care is taken for the safety of those to whom it is owed. It is not vicarious; it is a personal duty, breach of which requires fault. It is an onerous duty in that if a defendant owing the duty to a claimant does not take reasonable care to avoid a foreseeable risk of injury which eventuates causing damage to a claimant, then liability cannot be avoided by the defendant engaging another to carry out the defendant's responsibilities.

67. Whether the duty arises in a particular case will depend on the relationship between claimant and defendant. It is well established that this non-delegable duty is owed by a school authority to a pupil and by a hospital to a patient. Factors which support the existence of the duty include whether the relationship is one where the defendant has a high degree of control, the claimant is vulnerable, or the claimant has a special dependence on the defendant. The categories of situations where a non-delegable duty of care is owed are not closed, but courts should exercise care in extending them."

13. The last Australian case I should cite is New South Wales v Lepore (2003) 212 CLR 511. The question was as to the liability of a school authority for the sexual abuse of a pupil by a teacher whom the authority employed. The case proceeded on two premises: that there was no vicarious liability, and that there was no fault on the part of the authority itself. Gleeson CJ said at paragraph 3:

"The argument is that the authority's duty to take reasonable care for the safety of pupils, because it is non-delegable, may become a source of liability for any form of harm, accidental or intentional, inflicted upon a pupil by a teacher."

Gleeson CJ distinguished the case before him from that which arose in Introvigne or Kondis. He stated at paragraph 31:

The failure to take care of the plaintiff which resulted in the Commonwealth's liability in Introvigne was a negligent omission on the part of the teachers at the school, acting in the course of their ordinary duties. The hospital cases, which were treated by Mason J as analogous, similarly involved negligence. A responsibility to take reasonable care for the safety of another, or a responsibility to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm..."

And the nature of the difference is vigorously explained, notably at paragraphs 32 and 36. In the result the court rejected the case based on non-delegable duty. Lepore is helpful as suggesting that the cases in which such a duty may arise are limited to instances of negligence as opposed to other kinds of legal wrong.

ENGLAND AND WALES

14. Authority in this jurisdiction has been much more muted than in Australia, though a non-delegable duty has been recognised in some cases aside from negligence, and it is of interest in light of Lepore that in Scotland Lady Paton, sitting at first instance in the Outer House of the Court of Session in AM v Hendron & Ors [2005] CSOH 121, declined to strike out a claim alleging that the Scottish Education Department owed a duty of care to victims of sexual abuse perpetrated by monks working at a residential institution where children were placed by the Department. Generally the question whether, or at least when, the step beyond the paradigm case of duty of care should be taken has proved difficult and elusive. In A (A Child) v Ministry of Defence [2005] QB 183, to which I will shortly refer in greater detail, Lord Phillips of Worth Matravers MR as he then was said this at paragraph 29:

"The circumstances that give rise to the non-delegable duty of care that Mr Tattersall seeks to establish are not readily identifiable in English case law. They perplexed Professor Glanville Williams nearly 50 years ago (see 'Liability for Independent Contractors' [1956] CLJ 183) and they have become little clearer since then."

15. In Brown v Nelson & Ors [1971] LGR 20 (another case of a school pupil on an Outward Bound course) Nield J dismissed the claim, stating at p. 25 that "where a school must take their pupils to other premises, they discharge their duty of care if they know the premises and if the premises are apparently safe, and if they know that the premises are staffed by competent and careful persons." In Gold and in Cassidy the respective views of Lord Greene MR and Denning LJ, which favour the present appeal, did not represent the majority basis of decision. There are however two decisions in this court which with respect demand close attention: A (A Child) v Ministry of Defence, to which I have just referred, and Farraj v King's Healthcare NHS Trust [2010] 1WLR 2139.
16. In A (A Child) the claimant, the child of a British soldier and his wife serving in Germany, had been prematurely delivered in a German hospital by a German obstetrician. The background was that the Ministry of Defence had, after 1996, contracted with an English NHS Trust for the latter to arrange for the provision of secondary health care for servicemen and their families in German hospitals. The claimant suffered brain damage at birth caused by the obstetrician's negligence. Suing by his mother and next friend he asserted that the Ministry owed him and his mother a non-delegable duty of care to ensure that they were provided with medical treatment that was administered with due skill and care. At paragraph 30 Lord Phillips stated that "[i]n most cases [sc. where the step beyond the paradigm has been taken] it is possible to identify considerations of policy which led to the imposition of the duty". He proceeded to cite Gold v Essex CC, Cassidy v Ministry of Health and other learning, and considered the Australian authorities, citing (paragraph 43) Mason J in Kondis. He referred to Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513 in which the Ontario Court of Appeal by a majority declined to apply a "non-delegable" duty in the hospital context.
17. Turning to counsel's argument for the claimant, Lord Phillips said this (paragraph 47):

"He submitted that, having regard to the facts as they existed in 1998, the court should find that the MoD owed a non-delegable duty to ensure that A and B were provided with medical treatment that was administered with proper skill and care. He accepted that so to find would go beyond not merely the decisions of the English courts but also those of the Australian courts. This was because hitherto a non-delegable duty has only been found in a situation where the claimant suffers an injury while in an environment over which the defendant is in control. Mr Tattersall accepted that the MoD was not in control of the Gilead Krankenhaus."

The claimant's counsel in particular founded on a policy argument to the effect that (paragraph 50)

"it was desirable that British servicemen and their dependants should be able to sue the MoD in this country in respect of medical negligence suffered in a foreign hospital rather than being constrained to bring proceedings in the foreign jurisdiction in question. He sought to buttress his argument by reference to a paper for the guidance of primary care and acute trusts published by the Department of Health in November 2002...".

This argument was rejected by Lord Phillips (with whom Tuckey and Wall LJJ agreed), but his observations in the course of doing so bear on the question whether in this case we should uphold the duty contended for.

18. The material passages are as follows:

"52. Mr Tattersall's submissions seek to extend the law of negligence beyond any previous decision of the English court, subject to one exception. The exception is the finding of the existence of a non-delegable duty of care made by Judge Garner as one of the grounds of his decision in M v Calderdale and Kirklees Health Authority [1998] Lloyd's Rep Med 157. This finding did not represent the current state of English law. It seems to have been based on the observations of Lord Greene, MR in [Gold] and of Denning LJ in [Cassidy], although in neither instance did these represent the reasons for the decision of the majority of the court.

53. More significantly, in each of these cases the court was concerned with the duty of the hospital that was actually carrying out the treatment of the patient. The Australian cases postulated the non-delegable duty of a hospital on the basis that the hospital had accepted the patient for treatment. Judge Garner extended the principle beyond this. Thus Mr Tattersall is realistic in accepting, as he did, that, if he is to succeed on his appeal, he must persuade us on policy grounds to expand this area of tortious liability."

Lord Phillips then considered the guidance paper relied on by counsel, and the practicalities of taking proceedings in Germany against the Gilead hospital. He was unpersuaded that the claimant would face increased difficulties if he had to take that course. Then this:

"60. There is no suggestion here that there has been any fault on the part of the MoD. There is no suggestion that the imposition of the duty of care for which Mr Tattersall contends would or could impact on the care actually taken by DGPs [sc. "Designated German providers"]. In these circumstances I can see no justification for imposing a non-delegable duty on the MoD to ensure that due skill and care is exercised in those hospitals. It seems to me that Germany is the appropriate forum for this litigation and that the Gilead Krankenhaus is the appropriate defendant. I must, however, deal with the alternative ways in which Mr Tattersall advanced his case."

Finally, under the heading "The duty on the MoD before 1996" Lord Phillips said:

"62. The starting point of Mr Tattersall's argument was that, when the MoD was running its own hospitals in Germany, it owed service personnel and their dependants a non-delegable duty of care in relation to the secondary medical treatment that they received. The second stage in the argument was that, because the duty was non-delegable, it remained binding upon the MoD after the transfer in 1996 of the provision of secondary health care from the military hospitals to the DGPs.

63. As to the first limb of the argument, I was attracted by the Australian jurisprudence on which Mr Tattersall has relied. It seems to me that there are strong arguments of policy for holding that a hospital, which offers treatment to a patient, accepts responsibility for the care with which that treatment is administered, regardless of the status of the person employed or engaged to deliver the treatment. Lord Browne Wilkinson in X v Bedfordshire [[1995] 2 AC 633, 740] proceeded on the premise that this is established English law...

But Lord Phillips rejected (paragraphs 64 – 65) the second limb of counsel's argument:

"65. The answer to Mr Tattersall's argument, as Mr Lloyd Jones submitted, is that the basis of the duty asserted by Mr Tattersall, assuming such duty to be made out, was the fact that the MoD itself undertook the hospital care of its personnel and their dependants. Only while it continued to do so would the duty persist."

19. Clearly the court in A (A Child) did not repudiate the Australian learning, at any rate for the case of a hospital which had accepted responsibility for the care of a patient. The asserted duty was rejected for two reasons. First, counsel's specific policy argument, advanced in reliance on the Department of Health guidance paper, did not carry the day. But secondly – and more germane to the present case – the MoD on the facts had not undertaken the hospital care of its personnel and their dependants; and such an assumption of responsibility was at the forefront of the Australian cases.
20. Before indicating where A(A Child) takes the present case let me turn to Farraj v King's Healthcare NHS Trust [2010] 1 WLR 2139. The claimants, a married couple, were carriers of a gene which could cause a disabling blood disorder. Their second child suffered from the condition. Mrs Farraj was pregnant. They were advised that she should undergo DNA testing to ascertain whether their third child would also suffer from the disease. A chorionic villus sample was taken from Mrs Farraj. Foetal tissue from the sample had to be identified and the foetal cells cultured. This work could not be done in-house, and the defendant Trust (KCH) arranged for it to be carried out by a cytogenetics laboratory run by a highly reputable independent contractor. A cultured sample was returned to KCH, tested, and found negative. But when the claimants' third child was born he was found to have the disease. The independent laboratory was said to have been negligent because their technician had doubts whether the sample provided contained any foetal tissue, but failed to communicate her doubts to KCH.
21. The question whether KCH might themselves be liable for the negligence of the laboratory was raised by way of cross-appeal. Dyson LJ, as he then was, cited authority including (paragraph 71 ff) Wilsons & Clyde Coal Co v English [1938] AC 57, in which the House of Lords held that an employer owed a personal duty to provide a safe system of work which was breached by the negligence of an employee as a result of which another employee was injured. This was a like case to that before us, and not an instance of vicarious liability, because it was held that the employer owed a personal duty; and the duty would as surely have been breached had the unsafe system of work been devised by a negligent independent contractor as by an employee (see Dyson LJ's observations in Farraj at paragraph 73, citing Mason J in Kondis).
22. Dyson LJ opined (paragraph 74) that the rule in Wilsons & Clyde Coal was to be explained by the injustice of the then prevailing doctrine of common employment. He turned to the hospital cases, and noted (paragraph 76) that "Lord Greene MR in Gold and Denning LJ in Cassidy and again in Roe [sc. Roe v Minister of Health [1954] 2 QB 66] founded liability on the wider basis that the hospital is liable for the negligence of those who administer treatment in its hospital, regardless of their employment status." Dyson LJ also noted (paragraph 78) the obiter observations of Brooke LJ in Robertson v Nottingham Health Authority [1987] 8 Med LR 1, 13 ("[a health authority] has a non-delegable duty of care to establish a proper system of care..."). He discussed A (A Child) at some length. Then this at paragraph 88:

"I am prepared to assume (without deciding) that the editors of Clerk & Lindsell are right and that English law has now reached the stage that the approach advocated by Lord Greene and Denning LJ should be adopted. It is true that the extent to which a hospital owes a non-delegable duty to ensure that its patients are treated with due skill and care will depend on the facts of the particular case. But I shall assume that a hospital generally owes a non-delegable duty to its patients to ensure that they are treated with skill and care regardless of the employment status of the person who is treating them. As explained in Kondis, the rationale for this is that the hospital undertakes the care, supervision and control of its patients who are in special need of care. Patients are a vulnerable class of persons who place themselves in the care and under the control of a hospital and, as a result, the hospital assumes a particular responsibility for their well-being and safety. To use the language of Caparo Industries plc v Dickman [1990] 2 AC 605, 618A it is therefore fair just and reasonable that a hospital should owe such a duty of care to its patients in these circumstances. The claim in A's case failed inter alia because A's mother was not admitted to an MoD hospital and this court was not willing to extend the non-delegable duty of care to a duty to ensure that the treatment in a hospital over which the MoD had no control was carried out with due skill and care."

23. Dyson LJ considered (paragraphs 90-91) that the hospital cases where the extended duty had been upheld, like Wilsons & Clyde Coal, were driven by policy considerations determined by the courts by reference to what is fair, just and reasonable. The claimants in Farraj lost on the facts:

"92. Even on the assumption that I have made as to the effect of the hospital cases, I do not consider that they justify the conclusion that, on the facts of this case, KCH owed the claimants a non-delegable duty to ensure that CSL carried out the task entrusted to it with due skill and care. I do not accept that it follows from the fact that KCH is a hospital that the jurisprudence to be found in the hospital cases should be applied. The claimants were not admitted to KCH for treatment. KCH has at all material times provided diagnostic and interpretative services for chorionic villus sampling. But there is no reason to suppose that these services could not have been provided by a specialist laboratory or testing house rather than a hospital. In my judgment, there is a significant difference between treating a patient who is admitted to hospital for that purpose and carrying out tests on samples which are provided by a person who is a patient. Such tests are not necessarily carried out in a hospital. The special duty that exists between a patient and a hospital arises because the hospital undertakes the care, supervision and control of persons who, as patients, are in special need of care."

And Sedley LJ stated at paragraph 103 that "the facts do not fit the paradigm of patient and healthcare provider". Finally this from Dyson LJ at paragraph 93:

"The general rule [what I have called the paradigm case] is an important feature of our law of negligence. It recognises that the duty to take reasonable care may be discharged by entrusting the performance of a task to an apparently competent independent contractor. As Mason J pointed out in Kondis, the concept of a personal non-delegable duty is a departure from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, namely a duty to ensure that reasonable care is taken. In my view, any departure from the general rule must be justified on policy grounds. If the position were to be otherwise, there is a danger that the general rule would become the exception rather than the rule. As I understand it, that is not our law."

ARGUMENT AND CONCLUSIONS

24. Mr Ford for the authority does not of course assert that there is never "a duty to provide that care is taken" as opposed merely to a duty to take care. Some instances, at least, are clearly established. The judge below said:

"12... Such a duty has been held to exist only in well-defined circumstances – employers' duties to take reasonable care for the safety of their workmen, dangerous operations on the highway, particularly hazardous operations, the escape of fire, and under the rule in Rylands v Fletcher."

Well-defined or not, these are all cases where for different reasons the neighbour relationship is especially close; where the justification for imposing a duty is especially pressing. It may be there is no more specific common factor that applies to all potential instances of non-delegable duty. The editors of the current edition of Clerk & Lindsell on Torts consider (paragraph 6-56) that "no general principle can be stated and... the various types of case must be dealt with individually". It is perhaps unsurprising that the Caparo formula – fair, just and reasonable – is as generalised as it is. The appeal to policy (A (A Child) paragraphs 53, 63, and Farraj paragraph 91) does not, with great deference, refine the position, since broadly (and the learning speaks broadly) the common law's evolution is always based on policy.

25. Accordingly, if we are to find a sharper principle than Caparo's rubric for the resolution of this case, it will have a relatively narrow scope. I think it is to be found first in what the school and hospital cases have in common. It may broadly be described as an acceptance of responsibility to take care of a group of persons who are particularly vulnerable or dependent. This is the essential basis of the Australian learning: see in particular per Mason J in Kondis at paragraph 33. No rational distinction can be drawn, I think, between school and hospital for this purpose, and counsel suggested none.
26. But this approach describes no limit to the duty of the school or hospital towards those in its charge beyond the fact of its having accepted responsibility for their care. The law should not be so wide as to impose a non-delegable duty upon the institution to secure that care be taken to keep them safe from any mishap in any setting. In the court below "Mr. Turner QC said he did not contend that if a child went abroad under the aegis of a school (perhaps on some Gap or similar scheme, or on a foreign exchange) to some foreign location where he was injured, perhaps through the fault of the premises, the school authority in the UK would owe him a duty which was non-delegable" (judgment paragraph 54). And the judge referred to Cook v Square D [1992] ICR 262, in which an engineer was injured at premises in Saudi Arabia, belonging to a third party, where he had been sent by his employers. His claim was dismissed in this court. The judge below also gave an example (paragraph 55) of a school outing to a zoo. Mishaps such as an accident in the bus on the way, or an animal bite at the zoo, would not expose the school to liability where the respective causes were the negligence of the bus driver and the zookeeper. The accident en route calls to mind a case in which the judgment was supplied to us by counsel after the argument was concluded: Myton v Woods (1980) WL 149543, in which a child had been injured on his way home from school, transport having been provided by the local authority. This court held that the council's duty was discharged by their having engaged a taxi firm: they were not liable for the driver's negligence.
27. An appropriate qualification or limiting factor, restricting the scope of the institution's non-delegable duty, therefore needs to be articulated. Mr Ford submitted that it is to be found in the degree of control enjoyed by the institution over the setting and circumstances of the claimant's accident. It was the want of the employer's control over the Saudi premises that lost the case in Cook v Square D. The example of the outing to the zoo is analogous. A (A Child) and Farraj both lend support, Mr Ford submitted, to the adoption of a limiting factor based on degree of control. Mason J in Kondis (paragraph 33) contemplated that the claimant's accident happens at the institution's premises. Note also Fitzgerald v Hill paragraph 67 ("high degree of control"). And want of control may be said to underscore the court's reasoning in Lepore.
28. Clearly the presence or absence of control has been important in some of the cases. But stated as a test or principle, I think it is not free of difficulty. First, it is in the nature of a putative liability for the act or omission of an independent contractor that the impleaded party is less likely to be in a position to control his agent's actions than if the latter were an employee; yet this is the very class of liability postulated in this appeal. Secondly, if an institution may avoid the impact of a non-delegable duty to someone in its care simply by showing a want of control over the agent causing the damage, there is a risk that the limiting factor becomes the governing principle.
29. Moreover I entertain some doubt whether the critical factor which led to the claim's failure in A (A Child) and in Farraj was, simply, the defendant's want of control over the event causing the claimant's injury. It is true that in paragraph 88 of Farraj Dyson LJ said of the decision in A (A Child):

"[T]his court was not willing to extend the non-delegable duty of care to a duty to ensure that the treatment in a hospital over which the MoD had no control was carried out with due skill and care."

Lord Phillips' emphasis in A (A Child), however, was not so much upon the presence or absence of control simpliciter, but on the importance of the question whether in these cases the institution had itself undertaken the care of the claimant: see paragraphs 53, 63 and 65.

30. Accordingly I think that control is too blunt a criterion to constitute an apt qualification of the general principle giving rise to the non-delegable duty of a school or hospital, which I have broadly described as an acceptance of responsibility to take care of the institution's clientele, being a group of persons who are particularly vulnerable or dependent. The true test reflects the factors which suggest that control is important, but has more nuance. I would express it thus. A school or hospital owes a non-delegable duty to see that care is taken for the safety of a child or patient who (a) is generally in its care, and (b) is receiving a service which is part of the institution's mainstream function of education or tending to the sick.
31. In A (A Child) and in Farraj one or other of these two elements was missing. In A (A Child) the claimant was not generally in the hospital care of the Ministry. In Farraj it was not the function, let alone the mainstream function, of KCH to culture foetal tissue from the chorionic villus sample taken from Mrs Farraj. But if both elements are present, the neighbour relationship between institution and client will be sufficiently close to generate a non-delegable duty owed by the former to the latter. Its imposition will be fair, just and reasonable: Caparo. No requirement of policy demands a further element or condition, couched in terms of control. Provision of the relevant service off the premises of the school or hospital will not of itself negate the test's application.
32. There will be borderline cases, but that is inherent in an approach based on principle rather than rule. As for the present case, had the judge applied the test I have suggested, he could not in my judgment have concluded (as he did at paragraph 72) that the claim was bound to fail. In those circumstances I would allow the appeal. If there is an issue relating to the application of either element of the test, it will fall to be tried out on the facts. I assume there can be none as regards the first issue: the appellant was generally in the care of the authority's school. As for the second, we are told that swimming lessons form part of the national curriculum which, of course, the school was bound to deliver. That being so, it would appear that this element is also met.

Lord Justice Tomlinson:

33. As Laws LJ has set out at paragraph 18 above, in A (A Child) this court said of a finding by a lower court to the effect that, in circumstances closely analogous to those we are considering on this appeal, a non-delegable duty of care arose, that it "did not represent the current state of English law" – see per Lord Phillips of Worth Matravers MR at page 203C paragraph 52. In my view, in respectful disagreement with Laws LJ, we are precluded from recognising the non-delegable duty of care for which the Appellant has argued on this appeal. I would add that I do not consider that an interlocutory appeal offers an ideal opportunity to fashion the limits of any such duty. I would be happier attempting to determine liability in the light of findings of fact and at the same time as determining the liability, if any, of others for the injuries suffered by the Appellant in consequence of the tragedy which befell her in the swimming pool in July 2000. However, within the confines of the necessarily limited debate which this appeal permitted, the Appellant has not in my view provided any justification for the imposition of such a duty upon the authority. The imposition of such a duty would have significant implications not just for all education authorities but also for all those who operate schools and hospitals and, I suspect, all those who operate institutions which provide what may loosely be described as education or healthcare.
34. The circumstances in which we have been asked to recognise a duty of care going beyond that hitherto recognised by the common law in England or, I believe, in Australia, are doubly unsatisfactory. It seems likely that the claim will succeed only if it is shown that there was negligence on the part of one or other or all of the Second Defendant, who it is said contracted with the Fourth Defendant to provide swimming lessons and associated lifeguarding services, the Third Defendant, the lifeguard, or the swimming teacher, Paula Burlington. Paula Burlington is not herself sued. It seems likely that the lifeguard and Paula Burlington are both persons for whose negligence the Second Defendant is vicariously responsible. There may be additional bases upon which it can be said that either the Second or the Fourth Defendant was also negligent, but it is difficult to envisage that the action will succeed in the absence of a finding of fault on the part of those who were immediately responsible for the conduct of the swimming lesson, in whom I include the Second Defendant. We were told that by reason of being members of the First Defendant, the Swimming Teachers Association, the Second and Third Defendants have the benefit of liability insurance. It is so pleaded by the Claimant and indeed it is also pleaded that "in open correspondence dated 27 November 2007 the First Defendant conceded liability in full for the incident and for the Claimant's injuries" – see Re-Amended Particulars of Claim paragraph 23. This notwithstanding, we are told that there is a doubt over the insurance position of the Second and Third Defendants. If the Second and Third Defendants enjoy the benefit of liability insurance cover adequate to meet the award of damages, if there is one, it is not easy in my view to see the justification for recognising as resting upon the authority a duty of a greater ambit than has hitherto been recognised by English law. The days are long gone when we ignored the incidence of indemnity insurance. One would expect the costs charged to the Fourth Defendant for the service provided by the Second Defendant to reflect the cost of the Second Defendant arranging adequate insurance. The only purpose of the present appeal is to ensure that liability is brought home to a defendant with sufficient resources to meet the possible award.
35. The point however goes further. It is alleged by the Appellant (Re-Amended Particulars of Claim paragraph 5) that the authority owed her a duty to take reasonable care to ensure that the Second Defendant was an appropriate and competent independent contractor whose employees were suitably qualified and experienced. It is alleged that the requirements of appropriateness and competence comprehended in particular a requirement that the Second Defendant should have in force a suitable policy of public liability insurance. The general duty is broadly accepted by the authority although it is denied that its content extends to ensuring that its contractor had in place adequate liability insurance. So that issue is live on the pleadings and will be determined at trial. Yet in his skeleton argument for this appeal Mr Mark Turner QC for the Appellant says this at paragraph 31:-

"Further, the judge was wrong not to address the policy considerations relating to the provision of insurance. So long as the common law does not recognise a direct duty on a school to ensure that any independent contractor is insured then the existence of a non-delegable duty of care is strongly supported on public policy grounds . . . . If there is no valid policy in place then it is the school which should bear the consequences and not the victim."

We are therefore asked to use the absence of the duty on the part of the authority to ensure that its independent contractor has adequate liability insurance as a justification for the imposition of a non-delegable duty of care. We were offered no argument on the question whether the law recognises in these circumstances a duty to ensure that adequate liability insurance is in place. Mr Turner said that the authorities do not suggest that it does, and that he "did not have confidence" that his pleaded allegation as to the existence of such a duty would "get us out of the woods", but we were shown no authority bearing on this question. I express no view one way or the other but it is obvious that if the non-existence of the first duty is to be relied upon in support of the necessity for the second duty, it is necessary first to determine how the land lies in relation to the anterior question. This point assumes still greater significance in the light of the fact that Mr Turner put forward no other justification for the imposition of the non-delegable duty for which he contended.

36. One of the reasons given by the judge for his conclusion that no relevant non-delegable duty arose in the pleaded circumstances of this case was:-

"72(vii) Even if – which for these purposes I am prepared to assume – a school may be liable on a non-delegable basis for the actions of non-employee contractors providing educational services directly to children within its premises, this would in itself be an extension of the present common law. It would be a double extension beyond that for those who are not teaching (but lifeguarding) and in premises under the regular control of others, well away from the school itself, to be held liable."

In dealing with these points, which he summarised neatly as referring to geography and supervision, Mr Turner told us that in fact there had been present at the swimming pool Mrs Holt, the P.E. teacher from the Appellant's school. The presence of a teacher from the school is not part of the pleaded circumstances said to give rise to the duty, as pointed out by Mr Steven Ford QC for the authority. In his reply, Mr Turner observed simply that "we don't know what was going on with the teachers" by which he meant, I think, such teacher or teachers employed by the authority at the school as may have accompanied the children to the swimming pool. This uncertainty again to my mind underscores the undesirability of attempting to fashion the shape of the duty in the absence of established facts. It may prove to be the position that one or more of the school's teachers accompanied the class to the swimming pool. I appreciate that this is not currently alleged but it may prove to be in fact the case. If it is, the authority's admission that the class attended for a swimming lesson at the pool under the control and supervision of the Second Defendant's servants or agents may not tell the whole story. There would be scope for enquiry as to the extent to which the class in such circumstances remained in the care of the teacher from the school. The notion that the authority by its employees had no control over the manner in which the swimming lesson was conducted or supervised may be wholly unreal. The circumstances may be such that it is quite unnecessary to be searching for a non-delegable duty in order to impose liability upon the authority.

37. It goes without saying that this is a case in which liability is contested. The critical feature of the debate at trial seems likely to relate to the measures in place to ensure that a child in difficulty was promptly spotted and given the appropriate assistance and/or the manner in which those present performed their duties in this regard. For my part I would feel far happier in attempting to shape the ambit of the duty owed by each party allegedly liable in the light of findings of fact as to the nature of those measures and the manner in which each responsible person present played his or her part.
38. For all these reasons I think that the judge was unwise to accede to the invitation either to strike out or to give summary judgment in respect of the alleged non-delegable duty. At paragraphs 1 and 2 of his judgment the judge said that he was asked to determine a preliminary point or issue. With respect he was not, or at any rate the application before him was not in point of form one for the resolution of a preliminary issue, as the judge in fact noted in the course of argument. The trial of no such issue had been directed. I note also from paragraphs 11 and 69 of the judgment that it was Mr Turner's fall-back position that a decision should be deferred until all the evidence had been heard. Under both CPR 3.4(2)(a) and 24.2 the judge had a discretion which he could have exercised by permitting the matter to go to trial, even if he concluded that there was no reasonable prospect of success on the pleaded basis. After all, the matter was to go to trial against the authority in any event upon the basis that it had failed in its duty to take reasonable care to ensure that its independent contractor was appropriate and competent, as set out in paragraph 3 above. The authority suggested to the judge that if the allegation of non-delegable duty were struck out it would result in a significant saving of time and cost and that it would become necessary for the authority to investigate only the allegation of direct negligence, not the issue whether the Second Defendant, the Third Defendant and/or Paula Burlington were themselves negligent. I think that the alleged savings are likely to be illusory. The investigation whether the Second Defendant, the Third Defendant and/or Paula Burlington were negligent will be one of the central issues at trial and it is idle to think that the authority will not be concerned with it. It is critical to its interests. The judge thought that to fail to resolve the point was ducking the issue. I do not think that the judge needed to be concerned on that score. The interests of justice and of the parties, if those are different, would in my view have been better served by leaving the point to be resolved, if ultimately it arose, at trial upon a consideration of all the proved circumstances. I would not rule out that there may yet be further applications to amend the pleadings. Had the judge taken that course the trial would by now have taken place.
39. There is therefore I think a case for simply setting aside the judge's order and leaving the matter to proceed to trial. However neither party to the appeal invited us to do that and in the light of the course which the litigation has taken I am satisfied that it would not now be appropriate. The judge grasped the nettle and we must now I think do the same. For my part, I have not been persuaded that the judge reached the wrong conclusion. We have been given no good reason why it is necessary to move the law on from where currently it stands. In any event, I think that the judge was bound to reach the conclusion that he did, as are we. A development of the law along the lines sought must be a matter for the Supreme Court.
40. At paragraphs 64 and 66 of his judgment the judge said this:-

"64. To recognise a duty as arguable in the present case would thus be that marked extension of the common law which policy tends against. Even greater caution should apply to recognition of new categories of non-delegable duty than does to an expansion of negligence liability, since to recognise an intermediate category between strict insurance against injury and negligence itself is to suggest that the scope of the latter, though augmented by the principles of vicarious liability, is insufficient, even if gently extended, to meet the demands of that which is fair just and reasonable in the circumstances. If non-delegable liability to a hospital patient has yet to be established whilst he is within the four walls of the infirmary, and denied where work important to treatment (Farraj) or treatment itself (M v Kirklees) is carried out in some other place, not under the direct control of the health authority, though arrangements for the work or treatment have been made by it, then to suggest that an education authority should be liable to a pupil who is injured outside the school itself, where arrangements have been made with those who are recognised as specialist professionals to provide the activity, and where the safety and health of the school pupil though of great importance is not the primary raison d'être of the school's activities, potentially asks too much. There is no decided case upon which such a case could be said to be incremental. "

. . . .

66. The duty of the school in the present case is, albeit unhelpfully, expressed to be "in the capacity loco parentis". However, applying it: if a reasonably careful parent would entrust his child to a reputable coach company, or feel safe relying on the (after all, expert) skills of the zoo-keeper, would be as ignorant as any of the processes by which an ice-cream bar was manufactured, and would be prepared to permit his child to be abroad on an educational exchange (all of which I consider he unarguably could do without any breach of parental duty on his part), then it is reasonable to suppose he would confidently entrust his child to a public swimming pool under the supervision of a reasonably carefully chosen lifeguard and in the presence of a reasonably careful swimming teacher. To argue that the school should be responsible for any failure of the lifeguard to exercise due care would therefore be to extend the duty it owes beyond that of the parent to which the claim suggests it is to be restricted. That is unacceptable.

41. I agree with these passages. It is notable that in the Introvigne case at page 275 Murphy J observed that "the notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent". Like the judge, I do not find the reference to this aspect of the school's capacity helpful in deciding what should be the ambit of the duty cast upon it. As Murphy J continued:-

"A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of the classmates or other students."

42. I also agree with the judge that, as he observed at paragraph 67 of his judgment, the situations in which a school has in Australia been held to be liable under a non-delegable duty are closely analogous to the situations which might, but for there being no formal employment status, have given rise to vicarious liability. The unusual nature of the situation in Introvigne is explained by Gleeson CJ in New South Wales v Lepore at paragraph 24. Gleeson CJ had as Mr Gleeson QC been unsuccessful counsel for the Commonwealth in the earlier case. At paragraph 24 of his judgment in Lepore he explained as follows:-

"The case of Introvigne raised an unusual problem. The plaintiff, a schoolboy aged fifteen, attended the Woden Valley High School in the Australian Capital Territory. One morning before class, he and some friends entertained themselves by swinging on a flagpole in the school grounds. As a result of their exertions, the truck of the flagpole became detached, and fell on the plaintiff's head. He was injured. The plaintiff's case was originally based on the allegedly defective condition of the flagpole. He sued the Commonwealth as occupier of the school premises. He also sued the designer of the flagpole. On the first day of the hearing the plaintiff obtained leave to amend his Statement of Claim by alleging negligence on the part of the teachers. In particular, he alleged that the acting principal failed to arrange adequate supervision in the school grounds. The plaintiff claimed that the Commonwealth was liable as a result of that failure. However, the Commonwealth was not the employer of the acting principal, or the other teachers. They were all employees of the New South Wales Department of Education which, at the relevant time, operated the Woden Valley High School on behalf of the Commonwealth, pursuant to an inter-governmental arrangement. It was too late for the plaintiff to sue the state of New South Wales. The trial judge found no negligence. That finding was reversed on appeal. The factual issue is presently irrelevant. What was significant for future cases was the basis on which the Court attributed responsibility to the Commonwealth for the negligence of the teachers."

43. Against this procedural background the judges in the High Court did not in Introvigne speak with one voice. The Commonwealth was not held liable as occupier. Both at first instance and in the Full Federal Court the case had been put exclusively as one of vicarious liability. Mason J, with whom Gibbs CJ agreed, held the Commonwealth liable on the basis of a duty directly owed "akin to that owed by a hospital to its patient". Whilst it was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, "had it been necessary to do so the Commonwealth might have been found liable on this score". Murphy J concluded that "the damage to the plaintiff may be attributed to causes for which the Commonwealth is liable, unsafe premises and lack of supervision of the children". The Commonwealth was liable for these matters because it had assumed the role of conducting a school. He also concluded that the Commonwealth was vicariously liable for the acts and omissions of the teaching and other staff "whether or not these were supplied by another entity or agency". Brennan J said, at paragraph 8 of his judgment:-

"If the plaintiff had relied upon a duty of care which owed its existence to the actions of the teaching staff at the Woden Valley High School, the capacity of the staff to recreate the duty would have required consideration. In the case of a school authority, however, there is a duty of care resting upon it which depends in no way upon the actions of the teaching staff, a duty which arises directly by reason of its acceptance of a child as a pupil in the school."

The fifth member of the court, Aickin J, died before judgment was delivered. In Lepore Gleeson CJ summarised the outcome thus:-

"30. What was decided in Introvigne is that, even though it may have been doubtful that the Commonwealth was vicariously liable for the negligent failure of the teachers to provide adequate supervision (the doubt arising from the inter-governmental arrangement), nevertheless the Commonwealth was under a duty to provide reasonable supervision; it could not discharge that duty by arranging for the State of New South Wales to conduct the school; it had a responsibility to see that adequate supervision was provided; and the absence of adequate supervision meant that it had not fulfilled its responsibility and was in breach of its duty of care. That produced the same practical result as would have followed if the Commonwealth had employed the teachers; an outcome that would have been unremarkable but for the quirk of federalism encountered by the plaintiff when he belatedly amended his Statement of Claim."

44. For my part I do not think that the decision in Introvigne provides encouragement for the recognition of a duty such as is said to arise in this case in respect of activities occurring outside the school's premises and over the conduct of which the school or its teachers have no control. It was an essentially pragmatic decision designed to ensure that the plaintiff's failure to allege negligence earlier and/or to realise that the teachers' employer was not as it might have appeared the Commonwealth did not defeat his claim.
45. Kondis was a case between employer and employee. Essentially it was concerned with the provision of a safe system of work. Laws LJ has set out at paragraph 10 above the critical passage from the judgment of Mason J. I note that it focuses upon the assumption of responsibility for the safety of the invitor's premises. The same theme is to be found at paragraph 26 of Mason J's earlier judgment in Introvigne, which again Laws LJ has set out at paragraph 11 above.
46. De Beer is a decision at first instance in New South Wales which at first sight is of more relevance as it concerned the liability of an education authority for injuries sustained by a school pupil required to attend a camp remote from the school and operated by an independent contractor, Outdoor Education Australia Pty Limited. However as appears from paragraph 66 of the judgment the State accepted, possibly belatedly, that it owed a non-delegable duty of care for Mr De Beer's safety while at the camp and moreover accepted that, together with the independent contractor, it was an occupier of the camp. Whilst the judge referred parenthetically to Introvigne as apparent justification for the concession, evidently the point did not have to be decided.
47. Fitzgerald v Hill is the only case cited to us where the injury in question occurred off the school premises. John Ivanov admitted in his pleadings that he owned and operated the "Rhee Tae Kwon Do" Academy in Townsville. I put it that way because Ivanov later attempted, unsuccessfully, to withdraw this admission. In the light of the admission no timely steps had been taken against Mr Rhee, who it seems likely was in fact the owner and operator of the eponymous Academy. The plaintiff was an eight year old boy enrolled in a class for the conduct of which Ivanov undoubtedly did have responsibility. The members of the class were taken on a run by their Tae Kwon Do instructor, one Dobie. Dobie took the class for a run intended to culminate at the beach. In the course of the run the plaintiff was injured in a traffic accident for which both the driver and Dobie were held responsible, Dobie on the basis that he failed to take sufficient care of the children in the group when they were taken close to and across a busy road. Dobie died before proceedings were served on him and no steps were taken to join his estate to the action. The case advanced at trial against Ivanov was twofold – a non-delegable duty of care as owner and operator of the academy and vicarious liability for Dobie's negligence as his employee. However although Dobie was seemingly employed as an instructor at the academy, and had apparently been trained by Ivanov, it was found by the trial judge that Ivanov was not his employer. I infer that Mr Rhee was in fact his employer, although, perhaps unsurprisingly, there does not appear to have been a finding to this effect. It was held that Ivanov, as owner and operator of the academy, owed to the plaintiff a non-delegable duty of care "whilst he was at the academy participating in the academy's activities" or "whilst attending classes at the academy" – see per McMurdo P at paragraph 77 of her judgment. The duty was broken by Dobie's failure to take reasonable care of the plaintiff on the evening in question.
48. Again I do not regard this as a decision which gives much or any support for the recognition of a duty such as is required if the authority is here to be held liable on account of the negligence of the Second and Third Defendants and/or the swimming teacher, Paula Burlington. The decision seems again to have been essentially pragmatic in the light of the admission by Ivanov which caused the claim not to be pursued in a timely fashion against Rhee who, it seems, would have been vicariously responsible for the negligence of Dobie. Furthermore, the run to the beach was an integral part of the class at the academy for which the plaintiff had enrolled. It seems to me that the situation under consideration on this appeal is at least one step removed from that with which the Queensland court had to grapple.
49. The Australian learning proceeds upon the basis that the duty owed in the school context is akin to that owed by a hospital to its patient. As the judgments in A (A Child) and Farraj show, English law may well have followed the Australian lead so far as concerns the duty owed by a hospital to a patient admitted to it for treatment and/or to whom it offers treatment within the confines of the hospital. In neither case however was the Court of Appeal persuaded that the non-delegable duty of care should be extended beyond cases where the hospital was actually carrying out the treatment – see per Lord Phillips MR in A(A Minor) at paragraphs 52-60 and per Dyson LJ in Farraj at paragraphs 83-93.
50. As the judge below pointed out at paragraph 67 of his judgment in a passage which I have cited above, the situations in which a school has in Australia been held to be liable under a non-delegable duty are closely analogous to situations which might, but for there being no formal employment status, have given rise to vicarious liability. In order to succeed on the pleaded facts the Appellant needs here to establish liability on a non-delegable basis for the actions of independent contractors providing educational services at a location remote from the school in circumstances where the school has no control over the manner in which those services are provided.
51. M v Calderdale and Kirklees Health Authority [1998] Lloyd's Rep Med 157 was a case in which a similar extension of the duty was sought in a context virtually indistinguishable from that of hospital and patient. The judge, HHJ Garner, in the Huddersfield County Court, treated it as in fact indistinguishable, founding on a passage in paragraph 5.16 of the then current 17^th Edition of Clerk and Lindsell on Torts to the following effect:-

"The hospital authority itself is under a duty to its patients which it does not discharge simply by delegating its performance to someone else. No matter whether the delegation be to an employee or an independent contractor and on this basis it makes no difference whether or not a visiting consultant is a servant."

52. The plaintiff M was a seventeen year old woman who in February 1992 discovered that she was pregnant. She already had a daughter of six months and did not want another child. She was referred to a senior clinical medical officer for Huddersfield Community Services, Dr Sykes, and seen by her at the Princess Royal Community Health Centre. M thus became a patient of the Huddersfield Health Authority, which in due course became the Calderdale and Kirklees Health Authority. Following counselling Dr. Sykes agreed that abortion was appropriate and arranged for M to be treated by the Second Defendant, the Falladon Private Surgical Hospital. The Authority had a contract with the Falladon Hospital dating back to 1981. Dr Sykes wrote to the Falladon hospital in these terms:-

"I enclose notes for a patient for whom we are prepared to pay the appropriate fees for an abortion."

M duly attended the Falladon Hospital and a vacuum aspiration of pregnancy was effected. The operation was carried out by Mr Fayeye, the Third Defendant. Two and a half months later M discovered that she was still pregnant and that her pregnancy had been of some twenty or twenty weeks duration.

53. M gave birth to a healthy child in September 1992. She sued for negligence. She obtained judgment against the Third Defendant in May 1995 and against the Second Defendant in March 1996. It seems that neither was insured and by 1997 the latter was subject to a winding-up order. As the judge observed "in reality the only prospect of recovering damages lies against [the Authority]".
54. It was accepted that the termination of pregnancy was carried out incompetently. It was accepted that the Authority contracted with the Second Defendant, Falladon Hospital, that the Second Defendant should perform the termination of pregnancy. The judge found that M was under the care of the Authority at all material times and that she was its patient. One of the grounds of his decision in favour of M was that the Authority owed her a non-delegable duty of care. It was that finding which Lord Phillips MR in A (A Child) held "did not represent the current state of English law". Both Tuckey and Wall LJJ agreed and what was said by Lord Phillips is, I think, part of the essential reasoning of the decision.
55. Although Farraj was not a case concerned with "the paradigm of patient and healthcare provider" – see per Sedley LJ at paragraph 103, the approach of the court in A (A Child) was followed and applied. Laws LJ has already set out at paragraph 23 above Dyson LJ's insistence that any departure from the general rule must be justified on policy grounds. That echoes the approach of Lord Phillips MR in the earlier case in a passage at paragraph 60 of his judgment, which again is set out by Laws LJ at paragraph 18 above. Sedley LJ at paragraph 103 of Farraj emphasised that "caution is needed in importing the palliative concept of the non-delegable duty into . . . legal relationships" other than that of master and servant where the "illogical and unjust doctrine of common employment" had given rise to the concept of a non-delegable or "paramount" duty as a means of escape.
56. It is, as I have already remarked, accepted that the duty here sought in the school context is akin to that owed by a hospital to its patients. The factual case here pleaded is as it seems to me very closely analogous to the facts found in M. In the light of the Court of Appeal's treatment of that case in A (A Child) and Farraj, I do not consider that it is open to us to find that there was here, on the basis of the pleaded facts, a relevant non-delegable duty of care which will lead to liability in the authority in the event of negligence being found on the part of the Second or Third Defendants or of the swimming teacher, Paula Burlington. As I have already observed, so to hold would go beyond anything which has been held as a matter of decision by the Australian courts, and I do not believe that anything has been placed before us which would justify such an extension of our existing law. I do not believe that we can find in the pleaded facts alone any material on the basis of which we could conclude that the imposition of the duty would be fair, just and reasonable.
57. Laws LJ has in his judgment naturally sought to impose some limitation upon the extent of the duty, a task not essayed by the Appellant. Yet I respectfully consider that his formulation at paragraph 30 above will leave an educational authority liable without more for the negligence of the zoo-keeper's staff, to use the judge's vivid example at paragraph 55 of his judgment of the child bitten by an animal in consequence of such negligence whilst on a class outing to a zoo as part of a school's regular schedule of important educational visits. That result will follow unless, which I doubt, the trip can be regarded as not part of the school's mainstream function of education. Provided that undertaking a trip to the zoo in question did not itself amount to negligence because, for example, of the known incompetence with which the zoo is run, or, possibly, its lack of adequate liability insurance, I do not consider that we have been given any justification for such an outcome. Furthermore, the imposition of such liability would be likely, I think, to have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils.
58. I would dismiss the appeal.

Lord Justice Kitchin:

59. I agree with the judgment of Tomlinson LJ.
60. The issue in this appeal is the extent of the duty owed by the Essex County Council (the authority) and specifically whether, in all the circumstances, it included a personal duty to take reasonable care of the appellant, a pupil at the Whitmore Junior School, which it could not delegate or, put another way, a personal duty to ensure that reasonable care was taken. There is no dispute that the existence of such a duty would amount to a departure from the general rule that an employer of an independent contractor is not liable for the negligence or torts committed by that contractor in the course of execution of the task for which it has been engaged.
61. In submitting that such a departure is justified in the particular circumstances of this case Mr Mark Turner QC relied upon the hospital cases. In A (A Child) Lord Phillips of Worth Matravers MR recognised (at [63]) there were strong arguments of policy for holding that a hospital which offers treatment to a patient accepts responsibility for the care with which that treatment is administered, regardless of the status of the person employed or engaged to deliver it. Similarly, in Farraj Dyson LJ was prepared (at [88]) to assume, without deciding, that a hospital generally owes to its patients a non-delegable duty to ensure that they are treated with due skill and care.
62. The justification for imposing such a non-delegable duty is the special relationship that exits between a hospital and its patients. As Mason J explained in Kondis, a hospital undertakes the care, supervision and control of patients who are in a position of special need.
63. Thus in A (A Child), the appellant, a young boy, suing through his mother and whose father was stationed in Germany, suffered severe brain damage as a result of the negligence of an obstetrician in a German hospital. It was contended on his behalf that the negligence of the German doctor constituted a breach of the duty owed to the boy by the Ministry of Defence (MoD) which had arranged for treatment to be provided for the families of service personnel in Germany. In dismissing the appeal, this court held the MoD did not owe a non-delegable duty to ensure that its personnel and their families were provided with medical treatment which was administered with proper skill and care because the MoD had not itself undertaken their hospital care.
64. Lord Phillips explained (at [47]) that the duty contended for went beyond the decisions of the English courts and, indeed, of the Australian courts, because hitherto a non-delegable duty had only been found in situations where the claimant suffered an injury while in an environment over which the defendant was in control. A little later, at [52], Lord Phillips reiterated that the appellant was seeking to extend the law of negligence beyond any previous decision of the English court, subject to the decision of Judge Garner in M v Calderdale and Kirklees Health Authority, the facts of which Tomlinson LJ has summarised at [51]–[54] above, and which, like him, I find closely analogous to those of the present case. Judge Garner's finding, Lord Phillips continued, did not represent the current state of English law. Then, after referring to the observations of Lord Greene MR in Gold and Denning LJ in Cassidy, Lord Phillips said at [53]:

"More significantly, in each of these cases the court was concerned with the duty of the hospital that was actually carrying out the treatment of the patient"

65. The appellant's case therefore required an expansion of tortious liability which this court was not prepared to sanction.
66. Similarly, in Farraj, Dyson LJ explained at [88] that the claim in A (A Child) failed inter alia because this court was not willing to extend the non-delegable duty of care to a duty to ensure that treatment in a hospital over which the MoD had no control was carried out with due skill and care. So also, on the facts of Farraj, summarised by Laws LJ at [20] above, the claimants failed because they had not been admitted to Kings College Hospital for treatment. Dyson LJ accepted (at [92]) that if a patient admitted to hospital for treatment has tests carried out in the hospital then the non-delegable duty of care, which he was prepared to assume existed, would extend to the carrying out of those tests. But that would be because the tests would form part of the treatment that the patient was receiving in the hospital.
67. I am prepared to accept that pupils are, like patients, a vulnerable class of persons who are in special need of care. This proposition receives strong support from the decisions of the High Court of Australia to which Mr Turner also took us.
68. In Introvigne, the plaintiff, a pupil at the Woden Valley school, was injured when a truck fell from the top of a flagpole and struck him on the head. Mason J, with whom Gibbs CJ agreed, explained (at [26] and [30]-[33]) that a school authority owes to its pupils a duty to ensure that reasonable care is taken of them whilst they are on school premises during hours when the school is open for attendance. This principle applied to the Commonwealth which had established and maintained the Woden Valley school. Accordingly, the Commonwealth owed a duty to ensure that reasonable care was taken for the safety of the pupils attending the school.
69. Murphy J considered that the Commonwealth had assumed the role of conducting the school and became liable for damage caused by any lack of reasonable care of the students placed in its care. It was fixed with a non-delegable duty to take reasonable care to provide suitable and safe premises; to provide an adequate system to ensure that no child was exposed to any unnecessary risk of injury and to take all reasonable care to ensure the system was carried out. It was also vicariously liable for the acts and omissions of the teaching and other staff, whether or not they were supplied by another agency or entity. In many respects, he continued, the responsibilities of a school went beyond those of a parent because a school and a home could not be equated, and because a school has the right to control what happens at its premises. Here the damage to the plaintiff was properly attributable to causes for which the Commonwealth was responsible, namely unsafe premises and a lack of supervision.
70. Brennan J explained (at [8]) that the duty of the school authority to exercise reasonable care is antecedent to its employment of staff; and its liability for damage caused by a failure to provide adequate supervision is founded on its failure to discharge the duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil.
71. In Kondis, decided two years after Introvigne, and which concerned a claim by a workman for damages for injuries sustained in the course of his employment, Mason J reiterated (at [33]) that a school undertakes like special responsibilities to those of a hospital in relation to children whom it accepts into its care. The special duty arises because the school has undertaken the care, supervision or control of the children and is so placed in relation to them as to assume a particular responsibility for their safety in circumstances where it might reasonably be expected that due care will be exercised.
72. In Lepore, a case concerning liability of a school authority for sexual abuse of a pupil by a teacher, Gleeson CJ characterised the duty described in Introvigne as being one to provide reasonable supervision. This duty was non-delegable in that the Commonwealth could not discharge it by arranging for the State of New South Wales to run the school. The teachers at the school, acting in the course of their ordinary duties, had negligently failed to take care of the plaintiff, and the Commonwealth had failed to discharge its responsibility to see that adequate supervision was provided.
73. None of these cases involved circumstances similar to those of the present case, where a non-delegable duty is sought to be imposed in respect of the care of a pupil in an environment which was not under the control of the school. For that the appellant turned to two other cases.
74. The first, De Beer, a decision of the Supreme Court of New South Wales, concerned a claim by a pupil in respect of an injury suffered while at an outdoor education camp run by an independent contractor but I consider it provides little assistance for the reasons given by Tomlinson LJ at [46] above.
75. The second, Fitzgerald v Hill, a decision of the Supreme Court of Queensland, concerned an injury to the plaintiff, an eight year old boy, who was enrolled by his mother in classes at a Tae Kwon Do academy which the defendant, Mr Ivanov, admitted he owned and operated. One evening the members of the class were taken on a run by their instructor, Mr Dobie, when the plaintiff was struck by a vehicle and suffered severe injuries. It was conceded at trial that that Mr Dobie, as a person exercising control over the plaintiff, should have taken better care of him but the evidence did not establish that Mr Dobie was an employee of Mr Ivanov. Nevertheless the judge held that Mr Ivanov, as owner of the academy, owed to the plaintiff a duty of care in the performance of activities associated with the class which he was attending.
76. An appeal by Mr Ivanov to the Queensland Court of Appeal was dismissed. McMurdo P held that, like a school authority, Mr Ivanov, as owner and operator of the academy, assumed a particular responsibility for the plaintiff's safety because of his vulnerability and consequently owed to him a non-delegable duty to ensure that reasonable care was taken of him whilst attending its classes. Mr Ivanov had called no evidence to show that he had discharged that duty by, for example, establishing a safe system for the supervision of the children attending his classes and it followed that the judge was entitled to find that Mr Ivanov was in breach of his duty of care and that this breach was a cause of the plaintiff's injuries.
77. In my judgment the characterisation of the special relationship which has been found to justify the imposition of a non-delegable duty of care in the cases to which I have referred also assists in defining the limits of that duty. The essential elements of that special relationship are that the hospital or school has undertaken the care, supervision and control of a vulnerable person.
78. I come then to apply these principles in the context of the present case. The appellant suffered her terrible injuries in the course of a swimming lesson which she attended together with other members of her class at the Gloucester Park swimming pool in Basildon. The swimming pool was run by the Basildon Council and the arrangements under which the children had their swimming lessons were organised by Ms Beryl Stotford trading as Direct Swimming Services. The life guard and the swimming teacher supervising the lesson in which the plaintiff suffered her injuries were employees of Ms Stotford, not the authority.
79. It is accepted by the authority that it owed a duty of care to the appellant to take such care as would be exercised by a reasonably careful parent and to take reasonable steps to ensure that independent contractors, such as Ms Stotford, who were engaged to carry out tasks with pupils were reasonably competent to perform those tasks. But the authority disputes that it is liable for any want of care by the life guard, the swimming teacher or Ms Stortford.
80. I recognise that the categories of negligence are never closed but I consider it important to have firmly in mind that, as Dyson LJ explained in Farraj, the general rule which recognises that the duty to take reasonable care may be discharged by entrusting the performance of a task to an apparently competent independent contractor is an important feature of the law of negligence; and any departure from the general rule must be justified on policy grounds.
81. For my part, I see no justification for imposing upon the authority a non-delegable duty to ensure that reasonable care was taken of the plaintiff by Ms Stotford and her employees. True it is that the plaintiff suffered her injuries during the course of the school day and whilst taking a swimming lesson which, I am prepared to assume, formed part of the national curriculum. But, on the pleaded case, she did so in an environment which was not under the control of the school staff and whilst engaged in an activity which was not being conducted or overseen by the school staff. The school had no swimming pool and it is not suggested that its staff were trained as life guards or had the necessary expertise properly to supervise children taking swimming lessons.
82. In all the circumstances I do not believe would be fair, just or reasonable to impose upon the authority the non-delegable duty for which Mr Turner contends; and it cannot be inferred the authority ever assumed or accepted that duty. It never undertook that it would itself teach its pupils to swim; nor did it undertake the care, supervision or control of the pupils while they were taking swimming lessons. To the contrary, I think the authority might reasonably have been criticised had it not engaged a suitable and competent independent organisation with appropriate skills and access to appropriate facilities to conduct the swimming lessons for which the authority was evidently not itself equipped.
83. For all these reasons and those given by Tomlinson LJ, I too find myself in respectful disagreement with Laws LJ. I would dismiss the appeal.