The problem is he has no grasp of why NDDs arise (both as matter of
principle and as a matter of legal history). So the first paragraph is
exemplary in setting out what a NDD is, and how it differs from
vicariously liability. But he clearly thinks the existence of the duty is
a matter of pure policy ([15], [17], [30], [48]-[69]). A hopeless mixture
of all kind of incommensurable considerations are then invoked
(deterrence, enterprise risk etc). As a result, because it is impossible
to tell where the balance of these concerns lies, he is rightly very
reluctant to countenance any extension of the duty to novel cases not
expressly covered by English authority. And so he doesn't.

The "integration with the undertaking" idea has echoes of the test in
relation to vicarious liability, and the idea so popular in the twentieth
century that NDDs were a disguised form of vicarious liability (which they
are not).

If this had been a public (ie private) school with its own swimming pool,
would the school have escaped liability if it had been staffed by
independent contractors rather than school employees? Should the existence
of a NDD depend upon whether the defendant is also an occupier? It would
be a bit odd if it did as in England NDDs in relation to occupations were
abolished by the Occupiers Liability Act 1957.
Rob

> Dear Colleagues;oesn't
> Usually first-instance decisions are n 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
>
> http://www.newcastle.edu.au/staff/profile/neil.foster.html
>
> http://works.bepress.com/neil_foster/
>
>
>


--
Robert Stevens
Professor of Commercial Law
University College London