NDD are different from vicarious liability. A defendant will not be vicariously liable for the torts of an independent contractor, however an independent contractor may place the defendant in breach of a NDD. It is a primary duty.
A NDD is 'not merely a duty to take care but a duty to provide that care is taken.' eg if the NHS uses a self employed anaesthetist. They need to be careful who they delegate this responsibility to.
The circumstances must be such that the defendant can be taken to have assumed responsibility for the exercise of due care by third parties to whom it delegates the performance of its duty to protect the claimant from harm.
It is always important to identify what the precise duty is that is non delegable.
Woodland v Essex CC 2013 SC- School swimming lessons. Part of the school curriculum. She was quite a good swimmer. Supervised by life guard and swimming teacher, who were not connected to the school. They didnt take care. The girl ended up severely disabled when she was found floating upside down and it took ages for them to realise she was in trouble.
She argued the council owed her a non delegable duty of care when the life guard was negligent. Could a NDD be imposed on the local authority? Sumption gives judgement.
The decision was 'where a non delegable duty arises, the defendant is not liable because he has control, but in spite of the fact that he may have none.'- Lord Sumption. This does not need control like VL. This case is particularly relevant to public services when they outsource their services.
Sumption set out a list of criteria needed for NDD to arise-
- 1) C is a patient or child, or is especially vulnerable or dependent on the protection of D against the risk of injury. Other examples are prisoners, and residents in care homes.
- 2) theres a relationship between C and D, independent of the negligent act or omission itself, i) which places the C in the actual custody, charge or care of D, and ii) from which it is possible to impute to D the assumption of a positive duty to protect C from harm and not just a duty to refrain from the conduct which will foreseeably damage C. Such relationships involve an element of control over C.
- 3) C has no control over how D chooses to perform these obligations ie whether personally...
- or through employees or through a third party.
- 4) D has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards C, and the third party is exercising, for the purpose of the function that has been delegated to him, the D's custody or care of C and the element of control that goes with it.
- 5) The third party has been negligent, not in some collateral respect but in the performance of the very function assumed by D and delegated to him by D.
The Woodlands factors are underpinned by an assumption of responsibility.
Additionally it must be fair, just and reasonable to impose a NDD. 'The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A NDD of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.'
They dont want to crush the local authority. Many councils are unable to afford to run their services as they are currently as it is.
Woodland fulfilled criteria 2) as the child had a relationship with the school.
Criteria 5) is tricky. Should it be extended beyond negligence into intentional torts? Very narrow form. May not protect all.
She satisfied all the criteria and won the case. The life guard was negligent.
Lady Hale's opinions- 'although the boundaries of non delegable duties may not always be clear, cases will be decided on a case by case basis.' 'Judicial statements are not to be treated as if they were statutes and can never be set in stone.' 'In this case, if the public authority had not outsourced its functions, then they would be vicariously liable.'
The child shouldnt be penalised just because the responsibility was outsourced/delegated.
NA v Nottingham CC 2014 in the High Court- NA is claimant. She lived with mum and abusive step dad. Had a care order placed on her and was housed with two foster parents (aged 6). The first set were Mr and Mrs A. This was in a group family foster home- there were lots of children and there was a high turn over between the 9 children. They physically assaulted her and locked her in rooms etc. She then moved to Mr and Mrs B. This was home style fostering...
She was abused sexually by Mr B and abused by Mrs B. Abused by Mr B and the A's was found as fact. She tried to claim against the council, saying they employed foster parents and were vicariously liable. If they didnt accept that, then she said they had a NDD.
There was insufficient negligence on the part of the social workers involved with the claimant and her family.
2 issues- is there VL for acts of foster parents? And is there a NDD to foster children?
Decision in the High Court- he decided that a local authority cannot be VL for the deliberate acts of foster parents, and a local authority does not owe a child in foster care a NDD.
Applying the Sumption criteria (all 5 were met), Males concluded that the LA did not owe a NDD-
- 1) the claimant was a child
- 2) the relationship of child and local authority existed before the child was fostered as a care order had been made
- 3) the child had no control over how the Council made its choice. It was argued...
- but rejected that children do have control because the local authority was obliged to give due consideration to their views.
- 4) the local authority delegated to the foster parents some function which was an integral part of its own positive duty owed to a child in care. Males concluded that the positive duty which the local authority assumes is to care for the child.
- 5) Males also concluded that it doesnt matter if this relates to negligence or assault.
However, although all 5 criteria were met, Males did not feel it was fair just and reasonable to impose a NDD here.
Why in Males opinion was it unfair to impose a duty?
- foster child can sue the abuser so is in the same position as any child.
- Could lead to unreasonable financial burden on the local authorities providing a critical public service. Statistics from 488 children in 2008 to 906 in 2013 with 838 children in care by the end of Feb 2014 in Nottingham alone. If a NDD were to be imposed, it could make a real and tangible difference to the life chances of vulnerable children currently in need of foster care.
- The council will be insured so it may increase insurance premiums. No statistical evidence.
- Encourages reluctance to place children with foster parents, he called this 'risk averse foster parenting'. Placing in a care home is less risky as the LA has more control over employees.
- If NDD applied to foster parents, the line wouldnt be drawn there, it would apply when returning a child to natural parents who subsequently abuse. This is too broad. Would be like state insurance.
NA v Nottingham CC in the CoA 2015- the issue was VL. A previous VL case of S v Walsall MBC 1985 had failed on finding VL.
Adopting the test in Christian Brothers case they unanimously agreed that the relationship betwen a local authority and a foster parent is not akin to employment. (This decision may be changed in the SC appeal, remember Cox v MoJ had not been decided then.) Black LJ's judgement is preferred.
Reasons why no VL was imposed by the courts- they were unanimous on this-
- there was a lack of control by the D as to what the foster parents did on a day to day basis.
- Control by the LA is at a macro level said Tomlinson LJ. Lord Phillips described the relationship...
- between the Christian Brothers and the Institute as 'closer than that of an employer and its employee.' 'There is in my view, not the remotest of analogies to be drawn between that situation and the relationship of the local authority to foster parents.'- Tomlinson LJ.
- Foster parents werent integrated because family life is purely under the control of the foster parents.
- The foster parents werent acting on behalf of the organisation and providing family life was not part of the LA's business activity (but in Lister the warden was not providing family life and in Bazley v Curry the tortfeasor was acting in loco parentis.)
There is not much discussion of the child, it is mainly all on the council.
Since Cox v MoJ will control be as important? They mention it alot in this judgement but now is not as big an issue.
Lord Tomlinson on NDD- He decided that the 4th of Lord Sumptions criteria was not met. Duty given to third party is what he concentrated on. He was in the minority.
'In order to be non delegable, a duty must relate to a function which the purported delegator, here the local authority, has assumed for itself a duty to perform. Fostering is a function...
which the local authority must, if it thinks it the appropriate choice, entrust to others. By arranging a foster placement the local authority discharged, rather than delegated its duty to provide accomodation and maintenance for the child. True it is that the local authority entrusted to the foster parents the day to day delivery of accomodation, but accomodation within a family unit was not something which the local authority could itself provide and this cannot properly be regarded as purported delegation of duty. It was inherent in the permitted choice of foster care that it must be provided by third parties.'
Phillip Morgan says- 'this is a very odd construction, it may be implied into the duty to accomodate/maintain the child that care will be taken in doing so.
Tomlinson said as it didnt fufill the 5 criteria for him, it was not necessary to express a view on whether it was fair, just and reasonable to impose a duty. He had no opinion on negligence as opposed to abuse.
Lord Justice Burnett (Phillip Morgan criticises his judgement)- he said there is no liability for breach of NDD. Agreed that most of Sumptions criteria had been met.
but 'if, as is uncontraversial, parents would not be saddled with a non delegable duty of this sort (a duty not to assault the appellant) that conclusion provides strong support for the proposition that a local authority should not be either.' He doesnt understand the vulnerability of these children.
He rejects the notion that such a non delegable duty can relate to intentional torts by the tortfeasor, it only relates to negligence (New South Wales v Lepore).
Phillip Morgan says this doesnt make sense. If negligently poisoned someone the duty would be allowed, but not if they did it intentionally.
Lady Justice Blacks judgement on NDD-
- Fundamental that children are best placed in a family environment.
- If cant live with their parents, then a foster parent is desirable.
- Many checks, screening and visits to help keep children safe (there are now, but werent in the 70's.)
- If, through the duty that it places upon the local authority, the law of negligence improves...
- the chances of these safeguards being rigorously maintained, it is a very good thing.
- But as here, even proper care cant prevent harm.
- Although Sumptions 5 criteria have been met, it would not be fair, just and reasonable to impose a duty of care.
Reasoning on why it wasnt fair, just and reasonable-
- Leads to defensive practise. Local authorities would become more cautious about taking the risk of placing children with foster parents, and may place some children who would otherwise have benefitted from a foster home, in local authority run homes, instead in order that the local authority can exert greater control. (this may not be as clear cut as she makes out)
- Diverts scarce resources into the prevention of wrongs and insurance. (Phillip Morgan and Stelios Tofaris criticise this)
- If a local authorities duty is the same as parents in terms of day to day control, parents can delegate care of children to others without strict liabilty, why should a LA's duty be more onerous?
- It could discourage a LA from reuniting families as such NDD could result if the child is returned to abusive parents. Strong argument here. There would be strict liability...
- on what happens in the family home. The fear of such a wide duty would affect LA decisions.
'It was not fair just and reasonable to impute a NDD on the local authority. To impose a NDD on a local authority would be unreasonably burdensome and in fact, contrary to the interests of many children for whom they have to care.'
She balanced policy factors against the 'desirability of providing a remedy of substance to someone in the claimants position.'
There is a good table on the slide to sum up their opinions.
Questions for appeal in the Supreme Court-
- Does the relationship between a LA and foster parents fulfil the criteria for VL in fact and law?
- Are the criteria necessary to establish a NDD, as set out by Lord Sumption in Woodlands, met?
- If a NDD is established, is it breached by a deliberate, rather than a careless, act?
- Is it fair, just and reasonable in the circumstances to impose a NDD?
Watched the hearings in the SC on VL and NDD.
Her lawyer thinks you shouldnt talk about fair, just and reasonable as they fulfilled all the criteria. Lord Reed says you have to. Lord says what about the precedent if the parents abuse children?
Cheaper for authorities to foster kids than to keep them in a state run house.
Lawyer says fair just and reasonable to impose duty because of Various Claimants, the victim needs compensation, the difficulty in proving professional negligence, the fact it was the council who chose the parents, the social utility of fostering cannot be expected to come free of risk- enterprise risk of the council. Need to take the risk of the cheaper method. Just because 95% of children are ok, doesnt mean the other 5% should not be compensated.
Deterrence- never been central. Prevents bad systemes of working as will be directly liable.
Are damages a blunt instrument? Need to have a meaningful remedy and their story heard.
Social workers will be overcautious- the risk of being sued. They shouldnt think that way when doing their jobs anyway.
Her lawyer does make some good points.
- Vulnerable victims- these people were in very difficult situations. In Christian Brothers they were like prisoners in their own school. They have the hard job of proving against professionals. Have to view with the view they had then, not hindsight.
- Child doesnt choose where they are homed- she would've got compensation if she had been put in childrens home. Most sexual assualt happens in childrens home anyway and so defensive practice doesnt hold as much weight. In Woodland said if private school, you'd have a breached contract and can sue through that instead even if delegated.
- Damages dont turn the clock back but are an incentive to come forward.
- There is no empirical evidence to prove the defensive practice argument.
Stelios Tofaris- he supports helping the vulnerable.
Times are different now then they were in the 70's/80's. More care for children.
Phillip Morgan- the main reason it is not imposed is because if child is returned to real parents and abuse follows, this may create liability.