Dear Colleagues;
Usually first-instance decisions are not a feature on this list. But I think the careful analysis of Langstaff J in Woodland v The Swimming Teachers' Association & Ors [2011] EWHC 2631 (QB) (17 October 2011) http://www.bailii.org/ew/cases/EWHC/QB/2011/2631.html is worthy of note, and since non-delegable duty is a topic I have some interest in I thought it was worth drawing to attention.
The decision, shortly, is that a school which sends a pupil off to swimming lessons does not owe a non-delegable duty to the pupil in those circumstances, and hence cannot be held directly liable for carelessness of the swimming instructor (not employed by the school). What was good about the judgment from my perspective was that there was a serious attempt to grapple with the fact that authority at the highest level in Australia (Commonwealth v Introvigne [1982] HCA 40; (1982) 150 CLR 258 ) clearly holds that a school owes an NDD to pupils, and counsel had even discovered the more recent application of this principle in Fitzgerald v. Hill & Ors [2008] QCA 283 to pupils who were outside the main "educational premises". Despite this, however, Langstaff J holds that English law does not support the extension of NDD generally to pupils, and especially to pupils who are not on the school premises. (There is a concession in para [67] that "the necessary degree of integration may arguably be present where a supply teacher is contracted through an independent agency to teach a lesson inside the school, in a situation indistinguishable (but for the private contractual arrangements) from that of an employed full time teacher teaching a similar lesson to the same pupils in the same classroom", but even that is not very certain.)
What is lacking from the judgment is any interaction with more recent academic writing on the issues. The judgment would have benefited from some discussion of the pieces by Christian Witting, John Murphy and Robert Stevens which were referred to by Kirby J in the High Court of Australia's more recent decision in Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22. There is also an interesting attempt to invoke general "policy" considerations in coming up with a result - eg see [46]-[53].
I think the law of NDD is in a state of flux, even in Australia. Even in what might be conceded to be its "core" area of operation, duties owed by an employer to an employee, there seems to be a move to limit the operation of the doctrine to situations where the employee, while harmed by the actions of an independent contractor, is actually "on the premises" of the employer (such as in Kondis v STA (1984) 154 CLR 672, the main Australian decision). Basten JA delivered a decision which doubted the application of an employer's NDD to situations where an employee is sent to another workplace in DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 eg at [54].
This sort of approach would be consistent with Langstaff J's ruling here, though I am not yet convinced that it is right. Still, if it does become popular, the suggestion at [67] that the test should be whether the contractor was "integrated within the scope of the ... undertaking" may become one way of approaching the issue. That at least is not quite so simplistic as whether the harm occurred on premises physically occupied or controlled by the employer.
Regards
Neil


Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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