A school's non-delegable duty of care: UK case provides a timely refresher

In brief - A school's non-delegable duties of care may extend to the actions of third parties

Australian schools should be aware that delegating an activity to an independent contractor may not absolve the school from its non-delegable duty of care in respect of its students.

Legal position in Australia likely to be similar to that in the UK

Schools and their teachers owe a non-delegable duty of care to their students, save for intentional or criminal activities. There is little guidance on the extent to which that duty extends to situations where services provided by the school are carried out by third party independent contractors.

A recent case heard by the highest court in the United Kingdom, the Supreme Court (formerly the House of Lords), Woodland v Essex County Council [2013] UKSC 66, provides a useful summary of the key principles as regards schools' non-delegable duties of care in the United Kingdom and the circumstances in which those duties will extend to the actions of third parties.

The position in Australia is likely to be similar and indeed, the UK Supreme Court cited with approval Australian authorities. The issues the case raises are timely, as schools are engaged in providing swimming lessons and in planning winter sports such as skiing for later in the year. (Please see also our earlier article District Court finds non-delegable duty of school during skiing excursion.)

Most Australian cases deal with adequacy of supervision by teachers

In New South Wales v Lepore [2003] 212 CLR 511, the High Court of Australia held that schools and teachers owe a non-delegable duty of care to ensure that all reasonable care is taken for the safety of students, although it does not extend to a duty to prevent intentional or criminal activities.

The existence of a non-delegable duty does not mean that the school guarantees or warrants that no harm will occur to students, i.e. it is not akin to a no fault liability system. Instead the "reasonableness" of the care taken will be considered and weight given to factors such as financial costs of preventative measures and the practicality of their implementation.

Australian cases concerning a school's liability have tended to focus on the adequacy of the supervision provided by the school's teachers. (See for example Commonwealth of Australia v Introvigne [1982] 150 CLR 258.)

Little guidance exists as regards the scope of a school's non-delegable duty to students where the supervision is provided...