As keen readers of this column know, ‘vicarious liability’ is the legal doctrine that makes employers answerable for the actions of an employee in the course of his or her employment. But how does this translate to extra-curricular school activities? Richard Bird explains.

Fault lines

For a school or college – and the local authority, if it is the employer – ‘vicarious liability’ applies if a teacher or other member of staff harms a child by intention or negligence. A failure to identify disability, sexual offences and slips and falls – whether on the hall floor or the Icelandic ice-cap – can all be brought home to the employer.

These responsibilities, according to the present Lord Chief Justice, will generally stop at the gate (unless the school or college takes responsibilities upon itself beyond it). However, if the school/college sets up a trip or takes young people to an activity centre, where does responsibility end? What happens if an activity has been outsourced? Is the school or college still liable for an independent contractor?

The range of situations to which this could apply is considerable, from allowing someone to hire the sports hall to provide an extended activity that is then advertised as part of a school offering, to taking students to a sports centre.

In each case, the direction of the activity and the safety of the children are eff ectively in the hands of others. In those cases is the responsibility of the school/college non-delegable? That is, does it have total responsibility for children once they have been put into its care?

A recent case (Woodland v The Swimming Teachers’ Association & Ors [2011] EWHC) raised these questions in an acute form. A primary school took its pupils to a swimming bath. Although it was a district council facility, the provision of swimming lessons and life-saving had been contracted out.

Tragically, a child nearly drowned and suffered severe brain damage. Who was answerable? Was it the school or the county council who employed the school staff? The district council or the contractor? In the event, the child’s litigation friend followed the tried and trusted principle; if in doubt, sue them all.

The claimant pursued the county council with the non-delegable argument. The school was in loco parentis and that responsibility could not be abrogated until the child was returned to the care of her parents. Consequently, the council as employer (it was a community school) owed a “non-delegable duty of care” and it was vicariously liable for the negligence of both the contractor and the life guard and vicariously liable itself for failure to take reasonable care (through its school employees) to ensure that the contractor was “an appropriate and competent independent person to whom to delegate responsibility for the provision of swimming lessons and associated life-guarding services.”

The leading English case pointed exactly the opposite way. In Brown v Nelson and others [1971] a pupil at an approved school went on an Outward Bound confidence course which included riding a zip-wire between two trees. Something went wrong and he suffered serious injuries from which, some years later, he died.

In that case the judge said: “In my judgement, where a school must take their pupils to other premises, they discharge their duty of care if they know the premises and if the premises are apparently safe, and if they know that the premises are staffed by competent and careful persons. They further discharge their duty if they permit their pupils there to use equipment which is apparently safe and is under the control of competent and careful persons who supervise the use of such equipment. They do not, in such circumstances, have an obligation themselves to make an inspection.”

The claimant in Woodland v The STA raised a number of cases from Australia and Canada which, he claimed, justified the extension of the duty beyond Brown v Nelson. The judge was having none of it. In his view: “The duty postulated by the claim here has no meaningful content... A non-delegable duty should be capable of precise and careful formulation, precisely because of the width of its scope… The policy preference must be for the firm specialising in swimming services to lay down the system, and for the liability of the school to depend on whether that firm has been carefully selected for that task.”

There may be an appeal against this judgement so schools are not out of the woods yet. But if this judgement does hold, it will underline that the responsibilities of schools and colleges do have limits.

• Richard Bird is ASCL's legal consultant
  

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