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Pool trauma woman can pursue payout

A woman who nearly drowned during a school swimming lesson 13 years ago has won a landmark ruling from the UK's highest court which paves the way for her to pursue compensation from a local education authority.

Annie Woodland was a pupil at Whitmore Junior School in Basildon, Essex, when she had to be pulled from the water and resuscitated at Gloucester Park pool in July 2000.

Ms Woodland, now in her 20s and living with her family in Blackpool, suffered severe brain damage as a result of which she is now incapable of looking after her own affairs.

Her father Ian launched a claim for compensation on her behalf against the local education authority, Essex County Council, and other parties.

To date the family has suffered setbacks to the damages claim with rulings in the High Court and Court of Appeal which blocked her action against the county council.

In October 2011 a High Court judge threw out Ms Woodland's claim against Essex on the basis that it was bound to fail, and in March last year his view was backed in a majority ruling by Court of Appeal judges.

But today, Supreme Court justices in London allowed her appeal against those findings which means that there will now be a High Court hearing to determine whether or not she was the victim of negligence.

Five justices unanimously allowed the appeal and ruled that the local authority owed a "non-delegable duty of care".

Lawyers acting for Ms Woodland said before the ruling that the Supreme Court's decision was "anxiously anticipated by parents and local education authorities alike".

At previous hearings lawyers argued that Essex had a non-delegable duty of care ''in the capacity loco parentis''.

When the case was dealt with in the Court of Appeal, Lord Justice Tomlinson and Lord Justice Kitchin said that in all the circumstances, it would not be fair, just or reasonable to impose the non-delegable duty upon the authority.

And, said Lord Justice Tomlinson, the imposition of such liability would be likely to have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils.

It would have significant implications not just for all education authorities but also for all those who operated schools and hospitals and, he suspected, all those who operated institutions which provided what might loosely be described as education or healthcare.

The county council was obliged under the National Curriculum to provide its pupils with swimming lessons and it organised regular lessons at a local pool owned by Basildon Council. The swimming lessons were contracted out.

Lawyers acting for Ms Woodland argued that the school owed her a duty of care covering all mainstream activities, which applied even where third parties were contracted to provide teaching.

The issue before the Supreme Court justices at a hearing in July related to the criteria to be applied in "determining the circumstances in which a school's duty to its pupils under the National Curriculum can be delegated".

Ruling that the local authority owed a "non-delegable duty of care", Lord Sumption said parents were required to entrust their child to a school and had no influence over arrangements a school may make to delegate or over the competence of "delegates".

He concluded that if third parties were found to be negligent Essex County Council would be in breach of a duty of care.

Lady Hale said the decision was a "development of the law" and avoided the "unsatisfactory possibility" that one child could sue but another could not.

Ms Woodland's mother, Alison Morris, said she was "greatly relieved that justice has been done".

She said: " It should never have come to this in the first place. No child should suffer in this way. This ruling will make such a difference to families in the future."

Ms Woodland's father Ian said: "It has caused enormous damage to our family."

He added: "U p until this ruling, we had seen only injustice."

He posed the question: "How could the school not be responsible for our daughter during a national curriculum lesson?

"Yet everywhere we turned, we were let down. We are so glad that our lawyers at Pannone continued to support us and put so much effort into getting this judgment in Annie's favour.

"I hope that, in the light of this judgment, no other family has to go through the same as we have done."

Catherine Leech, the lawyer who represented the Woodland family, claimed the "common sense" decision provided protection for parents and children.

Ms Leech, a partner in the personal injury department of Pannone Solicitors, said: "The Supreme Court has agreed that schools have a duty of care to pupils which cannot be delegated to any external contractors which they bring in to take lessons.

"This judgment is also important because it can be applied to those charged with looking after vulnerable individuals, be they school pupils or those in care homes.

" I don't think that what the Supreme Court has decided will place an unreasonable burden on schools or prevent them from using independent contractors. They will still be protected if they check that those contractors who they employ are properly insured."

Speaking after the result was announced, Ms Leech said: " We hope now the defendants will perhaps look to settle this case. It would be very nice if the family did not have to go to trial."

Lord Sumption said the appeal arose out of a "tragic incident" when Ms Woodland was 10. She got into difficulties during a lesson and was described as being found "hanging vertically in the water".

One of the allegations is that her injuries were due to the negligence of a swimming teacher and a lifeguard, neither of whom were employed by the education authority.

Lord Sumption said their services had been provided to the authority by Beryl Stopford, "an independent contractor who carried on an unincorporated business under the name of Direct Swimming Services, and had contracted with the education authority to provide swimming lessons to its pupils".

The challenge before the court related to Ms Woodland's claim that the council owed her a "non-delegable duty of care" with the result "that it is liable at law" for any negligence on the part of the swimming teacher and lifeguard.

Lord Sumption said: "The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services.

"A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so."

But he said he did not accept "that any unreasonable burden would be cast on them" by recognising the existence of a non-delegable duty on criteria which " are consistent with the long-standing policy of the law" to "protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control."

The judge added: "Schools are employed to educate children, which they can only do if they are allowed authority over them. That authority confers on them a significant degree of control.

"When the school's own control is delegated to someone else for the purpose of performing part of the school's own educational function, it is wholly reasonable that the school should be answerable for the careful exercise of its control by the delegate."

It was not an "open-ended liability", he pointed out, "for there are important limitations on the range of matters for which a school or education authority assumes non-delegable duties".

Lord Sumption continued: "They are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions).

"In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance.

"They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays.

"Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours."

He added: "It is important to bear in mind that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable.

"The recognition of limited non-delegable duties has become more significant as a result of the growing scale on which the educational and supervisory functions of schools are outsourced, but in a longer historical perspective, it does not significantly increase the potential liability of education authorities."

Referring to Ms Woodland's case, Lord Sumption concluded: "The alleged negligence occurred in the course of the very functions which the school assumed an obligation to perform and delegated to its contractors. It must follow that if the latter were negligent in performing those functions and the child was injured as a result, the educational authority is in breach of duty."

Lady Hale agreed that recognising the existence of a non-delegable duty in the circumstances set out in the ruling would not cast an unreasonable burden upon service providers.

She said: "It is particularly worth remembering that for the most part public authorities would have been vicariously liable to claimants who were harmed in this way until the advent of outsourcing of essential aspects of their functions."


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