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INTRODUCTION

In this article, the authors sought to have discussion in depth of non-delegable duty
from the duty of care in the law of negligence. For that reason, in the beginning, the authors
will briefly talk about negligence and afterwards go deeper into the three-issue formula of the
existence of a duty of care, the breach thereof and the causal relationship of that breach to the
ensuing damage occasioned to the party to whom the duty of care is owed. After that, the
authors discussed on the non-delegable duties which they allude to Woodland case where the
diverging opinions had existed. The authors take us into the ruling and discussion on this very
important issue of law in the English law of negligence, which is in including category of a
non-delegable duty of care on the part of the duty-ower.

SUMMARY

Meaning of Negligence
Briefly, the authors call to mind the legal meaning of negligence referring to Blyth v.
Birmingham Waterworks Co, in the following words; "Negligence is the breach of a duty
caused by the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do."
It is deduced that the duty of care in the law of negligence is a duty required of a
reasonable man, and is confined to observing ordinary care and skill.

THE CONSTITUENTS OF ACTIONABLE NEGLIGENCE


A claim for negligence involves three (3) constituents namely; (a) a legal duty to
exercise due care by one to another within the scope of his/her duty; and (b) a breach of that
duty; and (c) consequential damage arising out of the alleged breach. From the said
constituents, they illustrate that the legal duty of care within the tort of negligence does not
extend to the exercise of undue care. Such a duty does not also extend beyond the scope of
duty that a party is required to exercise.

THE EXISTENCE OF A LEGAL DUTY TO TAKE CARE


In the absence of duty of care, a claim for negligence cannot stand in law and will be
dismissed on that ground alone without the necessity of a court considering the other two (2)
constituents. The authors specifically mentioned the statement of Lord Atkin in the celebrated
case of Donoghue v. Stevenson to display the way for the expansion of duty of care situations
from the traditional approach of determining the existence of a duty of care which the Court
found in favour of the existence of a duty of care on the part of one to avoid acts or omissions
which can be reasonably foreseen to be likely to injure the other who is so closely and

directly affected by the said acts or omissions. Besides, In Blyth v. Birmingham Waterworks
Company, the Court determined the existence of a duty of care on the application of a
'prudent and reasonable man' test also known as objective test.
Then the authors refer to statement of Lord MacMillan in the Donoghue v. Stevenson
case again for further discussion which further reflects the readiness of the English Court to
enlarge or expand the instances of duty of care situations in the law of negligence so as to
meet with the demands and the needs of the changing social standards and circumstances in
society. Thus, any discussion on whether a duty of care in the tort of negligence were said to
include a non-delegable duty to take care must therefore be undertaken in the context of a
'prudent and reasonable man' test as propounded in the decision of Blyth v. Birmingham
Waterworks Company ,the neighbour principle in Donoghue v. Stevenson and the open nature
of the categories of negligence as propounded by Lord MacMillan.

Non-delegable Duty of Care


To sum up, non- delegable duty of care is to be understood that a Defendant who owes
a duty to take reasonable care to avoid a foreseeable risk of injury which eventuates causing
damage to another, cannot avoid liability by engaging a third party to carry out his
responsibilities. Referring to the paradigm duty of care in the law of negligence, the act or the
omission to act complained of on the part of the duty-ower has got to be the act or omission
which falls within the scope of the duty of care of the duty-ower himself.

A duty to take reasonable care as opposed to a duty to ensure that reasonable care is
taken.
It is recognised that the duty to take reasonable care could be discharged by the dutyower by entrusting the performance of that duty to an apparently competent independent
contractor. This right of the duty-ower to entrust the performance of his duty to an apparently
competent independent contractor is an important feature of the general law of negligence,
the departure from which must be justified on policy grounds as laid down in the case of

Dyson LJ in Farraj v. King's Healthcare NHS Trust. Accordingly, this position is the majority
decision in Woodland.

The fact of Woodland


The Claimant, a ten year old pupil of a junior school, suffered brain injuries while
taking her swimming lessons in the swimming pool. The swimming lessons is the curriculum
of the school. The school fell within the jurisdiction and control of the Essex County Council
named as the 4th Defendant in the case and referred to as the education authority in the
judgment. The Claimant was sent for her swimming lessons to a swimming pool run by a
different County Council ie, Basildon County Council, which was named the 5 th Defendant.
The swimming lessons were supervised by a swimming teacher and a life-guard who were
both employees of an entity which was running the swimming lessons at the pool. The
Claimant claimed was that, the school authority, Essex County Council, was in breach of its
non-delegable duty to secure that reasonable care is taken of pupils of the school at locations
out of the school grounds. It was also the Claimant's claim that, Essex County Council was
vicariously liable in negligence for the negligence of the providers of the swimming lessons,
at the swimming pool. She also claimed that the education authority was also vicariously
liable for the negligence of both the swimming teacher and the life-guard.
The case then proceeded on the one issue, whether, Essex County Council (the
education authority) was in breach of a non-delegable duty on its part in entrusting the
Claimant pupil to Basildon County Council, and thereby the swimming lessons provider, the
swimming teacher and the life-guard? It is in this context that, the issue as to the nondelegable duty of the education authority arose in this case.

The majority decision in Woodland


The Court of Appeal, by a majority held that, the Essex County Council (the education
authority), did not owe a non-delegable duty to the Claimant, to ensure that reasonable care
was taken by the provider of the swimming lessons at the pool and their employees, the
swimming teacher and the life-guard.

The rationale behind the decision is found explicitly expressed in the judgment of Kitchin LJ
in the following words which further summing up to;
"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 a 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".
"In all the circumstances I do not believe it would be fair, just or reasonable to impose upon
the education authority the non-delegable duty....and it cannot be inferred the education
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 education 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 education authority was evidently not itself equipped.
The views conveyed through them are very much in accord with the well established
principles of the law of negligence as clearly laid down in mentioned cases of Blyth v.
Birmingham Waterworks Co, and Donoghue v. Stevenson, both of which bear out the fact that
the legal duty to exercise due care, in the law of negligence is such duty that is within the
scope of the duty-ower, and nothing beyond that. This is so as the education authority, had
acted in a reasonable manner by observing the ordinary care and skill required of it, in
entrusting the care of the Claimant with parties who had the necessary competence and skill
to perform the duty so entrusted.
Tomlinson LJ, who gave the main majority decision in Woodland, endorsed the
approach taken by Langstaff J. In principle, what Langstaff J said is that, for mishaps such as
an accident at the swimming pool where employees of a different entity were providing the
swimming lessons over which the education authority had no control, there was no question
of the education authority being held vicariously liable for the wrongs committed by them.
The Court of Appeal in its majority decision, through Tomlinson LJ, agreed with that.

All in all, the very crucial understanding to the majority decision of Woodland is that the
liability of the duty-ower in such instances will not be a liability for a breach in delegating the
duty but rather in not ensuring that the delegation is to a person or persons possessed with the
competence and skill to perform the duty so entrusted.

The minority decision in Woodland


The difference in the approach taken by the majority and the minority in Woodland is
in which the minority is of the view that control is not a requirement in all instances. Two
approaches were taken and compared by the authors to illustrates the alternative decision.
Tomlinson LJ emphatically stated that the imposition of liability on the education
authority on the facts and circumstances of the case would be likely to have "a chilling effect
on the willingness of education authorities to provide valuable educational experiences for
their pupils." More to the point, the imposition of liability in the circumstances of the case
will bring a negative consequence to the implementation of swimming lessons provided by
schools to their pupils, as part of the national curriculum.
Whilst Laws LJ found the justification in pinning liability on the education authority
for the reason that, like patients in hospitals, pupils in schools belong to a vulnerable class of
persons and accordingly a class of persons who are "in special need of care".On this, Laws LJ
placed reliance on the decisions of the High Court of Australia.
However, whilst accepting that pupils of schools, like patients in hospitals, belong to a
vulnerable class of persons and thereby in "special need of care", those are cases where a
non-delegable duty was sought to be imposed in respect of the care of a pupil in an
environment which was not outside the control of the school, as observed by the majority
decision in Woodlands through Kitchin LJ, In other words, those are cases where a nondelegable duty of care was sought to be imposed in respect of the care of a pupil in an
environment which was under the control of the school itself and not under the control of a
third-party as was the factual position in Woodland.