Non Delegable

Who is liable? Non-delegable Duty of Care

 

A 10-year-old girl at a UK school suffered severe brain injury after almost drowning and being resuscitated during a swimming lesson that her school had a responsibility to provide. The school delegated this responsibility by arranging for the swimming lessons to be provided by a private contractor, Direct Swimming Services. The parents brought a claim against the school for negligence, because they argued that the school had a non-delegable duty of care.

Initially the courts found that no such duty existed and that the school had discharged its duty of care when it entrusted the provision of swimming lessons to an apparently competent organisation. However the Supreme Court found, in 2013, that a school owed a non-delegable duty of care to ensure that school swimming lessons were conducted and supervised with reasonable care. As the duty could not be delegated, the local education authority was held liable for the negligence of the third party contractor, in carrying out the function that the school itself had a duty to fulfill.

While this is a UK case, it referred to key Australian decisions (in the flagpole case, mentioned in Part One of series, in previous eFlyer), and it has significant implications for Australian boarding residences.

What is a non-delegable duty of care?

 

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