Dear Ger;

Thanks very much for sending this through, it completes the picture nicely from the doctrinal perspective. Essex were held strictly liable under the NDD principles for negligence committed by the contractor(s) to whom it had entrusted the care of the school student in swimming lessons. Clearly the contractors had also been conferred authority to direct the pupils in the way the lessons were conducted.

In terms of the contribution, Essex was entitled to seek an indemnity from all three contractors. I don’t think it matters that Beryl Stopford, the “head” contracted swimming teacher, was not the employer of Ms Maxwell (the lifeguard) and Ms Burlinson (the actual teacher in the pool)- see [3[ where it is suggested these last two were “self-employed” contracted by Ms Stopford. Ms Stopford had undertaken the care of the children, however she organised that care she could be held liable and through her, Essex could be held liable.

If all three contractors were solvent I think Essex could have recovered 100% of the amount it was required to pay. But they chose not to join Ms Stopford or Ms Burlinson. As between Ms Maxwell the life-guard on lookout and Ms Burlinson the teacher in the pool, I think it was reasonable to apportion responsibility 1/3 to 2/3. Since Essex is being held strictly liable for Ms Burlinson’s negligence, they have to pick up 2/3 of the damages.

One point worth making is that the judge, correctly, does not spend any time considering whether Essex were “directly” liable for, say, failing to check Ms Stopford’s credentials or the like. That is because NDD is a principle of strict liability and whatever Essex did, or did not, do, once they had entrusted the children to her care they could be held liable for her carelessness, or for the carelessness of others she in turn entrusted the children to.

Regards

Neil

neil foster