We explore a new case from the United Kingdom that may in time bring a new form of tortious liability to public organizations in Canada, like hospital operators, educators, and Social Service providers. Under the 'non-delegable duty of care', these organizations could become directly liable for the negligent acts of independent contractors carrying out their key functions.
In Woodland v. Essex County Council  UKSC 66, the Supreme Court of the United Kingdom adopts the 'non delegable duty of care'. Here, the Plaintiff started an action against the Defendant education authority for injuries she suffered during a swimming accident during school hours.
The Plaintiff, aged 10, was enrolled in a swimming class as part of her school’s physical education program. The Plaintiff went to the pool accompanied by a school teacher. The swimming lessons were contracted out to a private unincorporated business named “Direct Swimming Services”, and the business’ swimming instructor and life guard were responsible for these lessons. During a swimming lesson, the Plaintiff had difficulties and was found floating face-down in the water. She was resuscitated but suffered a serious hypoxic brain injury.
The Plaintiff started an action against the Defendant education authority directly under the doctrine of “non-delegable duty of care”. This doctrine states that there are certain duties that even when delegated to a third party for which the original party may remain liable. Any injuries the Plaintiff suffers as a result of the negligence of the third party still leaves the Defendant liable.
In the first hearing, the Defendant was successful in having the allegation of a non-delegable duty of care against it struck out, and the Plaintiff appealed. The Court of Appeal reviewed case law in the U.K. and Australia and recognized that such a duty exists where the following 5 circumstances are present:
1. The Plaintiff is someone who is especially vulnerable or dependent upon the protection of the Defendant against the risk of injury. (e.g. a medical patient, or a child).
2. There is a relationship between the Plaintiff and the Defendant which places the Plaintiff in the custody, charge or care of the Defendant and from which can be imputed a positive duty to protect the Plaintiff from harm.
3. The Plaintiff has no control over how the Defendant chooses to perform its obligations.
4. The Defendant has delegated some function to a third party which is an integral part of the positive duty he or she assumed towards the Plaintiff and the third party is exercising the Defendant’s custody or care of the Plaintiff.
5. The third party has been negligent in the performance of the very function assumed by the Defendant and delegated to the third party.
In the case at hand, the Court of Appeal found that the Defendant had assumed a duty to ensure the Plaintiff’s swimming lessons were carefully conducted and supervised. In the circumstances, the non-delegable duty of care applied. If the third party was negligent, liability would rest with the Defendant. The Court of Appeal allowed the appeal and permitted the Plaintiff to advance her claim of non-delegable duty of care against the Defendant at a future trial.