Who is liable? Non- delegable Duty of Care

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1 Who is liable? Non- delegable Duty of Care A 10- year- old girl at a UK school suffered severe brain injury after almost drowning and being resuscitated during a swimming lesson that her school had a responsibility to provide. The school delegated this responsibility by arranging for the swimming lessons to be provided by a private contractor, Direct Swimming Services. The parents brought a claim against the school for negligence, because they argued that the school had a non- delegable duty of care. Initially the courts found that no such duty existed and that the school had discharged its duty of care when it entrusted the provision of swimming lessons to an apparently competent organisation. However the Supreme Court found, in 2013, that a school owed a non- delegable duty of care to ensure that school swimming lessons were conducted and supervised with reasonable care. As the duty could not be delegated, the local education authority was held liable for the negligence of the third party contractor, in carrying out the function that the school itself had a duty to fulfill. While this is a UK case, it referred to key Australian decisions (in the flagpole case, mentioned in Part One of series, in previous eflyer), and it has significant implications for Australian boarding residences. What is a non- delegable duty of care? A non- delegable duty of care is a duty of care that cannot be delegated to another party. This means that even if another person or organisation provides a service for a boarding residence, this does not remove the duty of care from the boarding residence.

2 A historic overview This understanding of non- delegable duty of care has been developing over time in Australia. In 1910, a father took action against the NSW education authority because his 11- year- old son had been partially blinded by another student in a chemistry lesson. The teacher had asked a student to carry a tumbler that contained sulphuric acid. Not knowing what was in the tumbler, the boy threw it as he went past a porch and it struck the 11 year old. The court initially awarded the father 133 Pounds, but the education authority appealed and won their case, because it was found that the education authority was not responsible for the negligence of the teacher. The court found that their duty of care was delegable (to the teacher). This view remained in place until a 1964 court decision provided an opinion that the 1910 ruling was wrong, and that there was non delegable duty of care even in This 1964 decision in a negligence case changed the way the courts viewed non delegable duty of care and basically set the foundation for how the courts would treat duty of care from that point on. The case involved a 12- year- old boy who climbed a tree with three of his friends to retrieve some keys that had been thrown into the tree. The teacher passed up a rope to help the boys recover the keys and when the boy moved his position to grasp the rope, the boy fell out of the tree, sustaining serious leg and arm injuries. The court found that the teacher was negligent, but so was the school, because it couldn t delegate its duty of care. Kitto, one of the judges, said: the duty to take care of a pupil is not normally the personal duty of the teacher alone. In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a government or corporation or an individual,

3 that the school authority undertakes not only to employ proper staff but to give the child reasonable care. Other court outcomes built on this 1964 understanding of duty of care over the many intervening years until the 21 st Century. An 8- year- old boy member of a Tae Kwon Do class in Townsville was taken for a run along the road with an instructor, when hit by a car, sustaining serious injuries. The driver of the car was found to be negligent but a 2007 court case also found the owner and operator of the Tae Kwon Do class liable because he had a non- delegable duty of care for the young people in his classes. In 2009 an 18- year- old girl was killed when she fell from a bolting horse at a TAFE Jillaroo course at Dubbo. The local TAFE was found liable for the girl s death and fined $300,000 by the district court because the court found that the TAFE had failed in its duty of care to the student, despite the fact that the TAFE had contracted with an outside provider for the horse lessons. These examples indicate that the courts are finding that if a school (or similar education institution), employs a person to carry out a role, or engages an outside provider to deliver a service, the school still has a duty of care and that duty of care is non- delegable. Defining features In the case of the UK Supreme Court decision in 2013, the leading judge (Lord Sumption) set out five defining features which he believes are the primary characteristics for cases involving a non- delegable duty of care. It is likely that these defining features may be a test for similar future cases:

4 The claimant is a patient or child or especially vulnerable or dependent on the protection of the defendant against the risk of injury. There is an antecedent relationship between the claimant and the defendant which places the claimant in the actual custody, charge or care of the defendant and from which it is possible to attribute to the defendant the assumption of a positive duty to protect the claimant from harm, not just a duty to refrain from conduct which will foreseeably harm the claimant. The claimant has no control over how the defendant chooses to perform those obligations. The defendant has delegated its function to a third party which is an integral part of the positive duty which he owes to the claimant; and in exercising the function delegated to him the third party assumes the defendant s custody or care of the claimant and the control element connected with it. The third party has been negligent in the performance of the function delegated by the defendant to him. This clearly has implications for boarding providers; primarily that, irrespective of whether the Boarding residence provides the service or outsources the service, they should always ensure that the student is in a safe environment. Risk assessment The most important way of ensuring a safe environment is to conduct a thorough risk assessment. All activities that could present a potential hazard should be risk assessed, particularly those taking students off site. This will involve consulting with the external provider and then identifying appropriate control measures to manage any exposure to unnecessary risks. Examples of actions that a residence may take in this process include: clear and open communication between the residence and the provider is critical for an effective and well- informed relationship; checking the adequacy of the provider by checking references;

5 requesting a current public liability insurance certificate; checking the qualifications of the provider s staff. checking that the external provider has well documented (and implemented) safety procedures in place, including adequate procedures for supervision of students, including initial assessment of students; checking that the provider has safety procedures in place for procurement, assessment and monitoring, of animals and equipment; checking first aid and emergency procedures, including who is responsible for first aid and other emergency procedures; Employers are responsible for ensuring that risk assessments are carried out by competent people, ie those who have sufficient knowledge, skills, experience and aptitude. These people may be current employees, provided they have been suitably trained, or external health and safety professionals. Student boarding organisations that take risk assessment of external providers seriously will have a policy in place and procedures that all staff members are familiar with and to which they adhere. Thus, all staff members scheduled to be on duty when an external provider is conducting an activity will be alert and know if the risk assessment has been done and what the outcome was. In the same way that workplace health and safety is now everyone s responsibility, so too is awareness of student risk, and the necessity of risk assessment. References reeve.com/reflections- on- the- supreme- court- decision- in- woodlad- v- essex- county- council / fined for- jillaroo- death/ updates/non- delegable- duty- of- care/ fullarticle

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