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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Woodland v The Swimming Teachers' Association & Ors  EWHC 2631 (QB) (17 October 2011)
Cite as:  EWHC 2631 (QB),  ELR 76,  PIQR P3
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QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
| ANNIE R. WOODLAND (Protected by Her Litigation friend IAN WOODLAND)
|- and -
|(1) THE SWIMMING TEACHERS' ASSOCIATION
ESSEX COUNTY COUNCIL
(5) BASILDON DISTRICT COUNCIL
Hearing dates: 10th June
Crown Copyright ©
Mr Justice Langstaff :
"What duty did the school authorities owe to the deceased? They were not the occupiers of the site or of the apparatus. They had, in my view, a general duty to take reasonable steps for the safety of those under their charge and use such care as would be exercised by a reasonably careful parent. Counsel tell me that there is no authority covering the situation where a school makes use of someone else's equipment at premises other than the school premises. In my judgment, 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."
He cited Davie v. New Merton Board Mills Ltd  AC604, per Lord Simonds at 626, to the effect that (under the law as it then stood) employers were not in breach of a duty to provide safe plant and equipment to their employees where they purchased tools from well-known makers which subsequently were revealed to be defective, but were entitled to assume they were proper for use; and Wilson v Tyneside Window Cleaning Company  2 QB 110 per Pearce L.J. at 121, to the effect that if an employer sends an employee to work, "for instance in a respectable private house", he could not be held negligent for not visiting the house himself "to see if the carpet in the hall created a trap".
At the very least, the claim that the duty was non-delegable was not unarguable, and in any event before determination of the relevant facts was not suitable for a strike-out.
"First, vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming, in The Law of Torts, 9th ed (1998), pp 409-410, observed that this formula represents
"a compromise between two conflicting policies: on one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; on the other, a hesitation to foist any undue burden on a business enterprise".
Second, it has traditionally been regarded as taking two forms: first liability for an authorised or negligently permitted unlawful act of an employee in the course of employment; and, second, liability for an employee's unauthorised or not negligently permitted unlawful mode of doing an authorised act in the course of employment. Only the latter is truly vicarious liability; the former is primary liability."
Although his judgment was appealed to the House of Lords (where it was affirmed) those passages do not appear to have been contentious.
"It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work. To this general rule there are certain well established exceptions or apparent exceptions. …….. But it has been rightly said that the so-called exceptions 'are not true exceptions (at least so far as the theoretical nature of the employer's liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant': see Clerk & Lindsell on Torts , 15th ed (1982), para 3–37, p 185.""
"In most cases it is possible to identify considerations of policy which led to the imposition of the duty. Thus, if a person intends to carry out a dangerous activity, he will owe a personal duty to ensure that reasonable care is exercised in relation to it because public policy requires that, whether he carries out the activity himself or engages another to do so, he should see that proper precautions are taken. In the field of employment, the courts have held that an employer owes a personal duty to ensure that reasonable care is taken for the safety of his workmen which he cannot delegate: see Wilsons and Clyde Coal Co Ltd v English  AC 57. This decision has been said to have been motivated by the desire to escape the injustice flowing from the doctrine of common employment."
"The question which presents itself in the present case may, therefore, be formulated as follows: When a patient seeking free advice and treatment such as that given to the infant plaintiff knocks at the door of the defendant's hospital, what is he entitled to expect? He will find an organization which comprises consulting physicians and surgeons, presumably also house physicians and surgeons, a staff of nurses, equipment for administering Grenz ray treatment and a radiographer, Mead, employed to give that treatment. So far as consulting physicians and surgeons are concerned, clearly the nature of their work and the relationship in which they stand to the defendants precludes the drawing of an inference that the defendants undertake responsibility for their negligent acts…………."
As to nurses, however, he said:
"…if the nature of their employment, both as to its terms and as to the work performed, is what it usually is in such institutions I cannot myself see any sufficient ground for saying that the defendants do not undertake towards the patient the obligation of nursing him as distinct from the obligation of providing a skilful nurse. Nursing, it appears to me, is just what the patient is entitled to expect from the institution and the relationship of the nurses to the institution supports the inference that they are engaged to nurse the patients. In the case of a nursing home conducted for profit, a patient would be surprised to be told that the home does not undertake to nurse him. In the case of a voluntary hospital with the usual nursing staff his just expectation would surely be the same."
"It has been said, however, by no less an authority than Goddard, L.J., in Gold's case, that the liability for doctors on the permanent staff depends "on whether there is a contract of service and that must depend on the facts of any particular case". I venture to take a different view. I think it depends on this: Who employs the doctor or surgeon - is it the patient or the hospital authorities? If the patient himself selects and employs the doctor or surgeon, as in Hillyer's case, the hospital authorities are of course not liable for his negligence, because he is not employed by them. But where the doctor or surgeon, be he a consultant or not, is employed and paid, not by the patient but by the hospital authorities, I am of opinion that the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he was employed was a contract of service or a contract for services. That is a fine distinction which is sometimes of importance; but not in cases such as the present, where the hospital authorities are themselves under a duty to use care in treating the patient.
I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services."
"It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of staff is himself in breach of a separate duty of care owed by him to the plaintiff ... Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed directly by the authority to the plaintiff."
"...seems to have been based on the observations of Lord Greene MR in Gold v Essex County Council  2 KB 293 and of Denning LJ in Cassidy v Ministry of Health  2 KB 343, although in neither instance did these represent the reasons for the decision of the majority of the court. "
Unless, therefore, the court could be persuaded on policy grounds to recognise such a duty, he concluded that the claim must fail. The court remained unpersuaded.
"To use the language of Caparo Industries plc v Dickman  2 AC 605 , 618 it is therefore fair just and reasonable that a hospital should owe such a duty of care to its patients in these circumstances. The claim in A (a Child)'s case failed, inter alia, because A's mother was not admitted to an MoD hospital and this court was not willing to extend the non-delegable duty of care to a duty to ensure that the treatment in a hospital over which the MoD had no control was carried out with due skill and care."
"The special duty that exists between a patient and a hospital arises because the hospital undertakes the care, supervision and control of persons who, as patients, are in special need of care. I accept that, if a patient who is admitted to hospital for treatment has tests carried out in the hospital, then the non-delegable duty of care, which for present purposes I am assuming to exist, would extend to the carrying out of the tests. But that is because the conducting of the tests is part of the treatment that the patient is receiving in the hospital. The claimants were not admitted to KCH for treatment. KCH has at all material times provided diagnostic and interpretative services for chorionic villus sampling. But there is no reason to suppose that these services could not have been provided by a specialist laboratory or testing house rather than a hospital. In my judgment, there is a significant difference between treating a patient who is admitted to hospital for that purpose and carrying out tests on samples which are provided by a person who is not a patient. Such tests are not necessarily carried out in a hospital"
"when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed ... The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them ... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised." (italics added)
"It arises from a relationship which combines the dependence of A upon the reasonable care, skill and judgment of B with the legitimate expectation that B will ensure that those qualities will be exercised in protection of the person or property of A. A further policy decision will be required to determine when that peculiar combination of dependence and expectation ... exists. But it can scarcely be doubted that it does so in the case of the relationship between hospital and patient ... The basis of the duty is, more persuasively, the satisfaction of expectations about where liability ought to be sheeted home."
"There are strong reasons for saying that it is appropriate that a school authority comes under a duty to ensure that reasonable care is taken of pupils attending the school. This was the view expressed by Kitto J. in Ramsay v. Larsen (1964) 111 CLR, at p 28. The immaturity and inexperience of the pupils and their propensity for mischief suggest that there should be a special responsibility on a school authority to care for their safety, one that goes beyond a mere vicarious liability for the acts and omissions of its servants."
He turned to ask whether this principle applied to the Commonwealth, and concluded that:
"It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case, in the two respects already mentioned. It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score"
" 1. The Commonwealth assumed the role of conducting a school; it is immaterial whether it was required to do so by Act of Parliament. It became liable for damage caused by any lack of reasonable care of the students or pupils placed in its care. In terms of the prevailing concepts of duty, the Commonwealth became fixed with certain non-delegable duties:
2. (1). To take all reasonable care to provide suitable and safe premises. The standard of care must take into account the well-known mischievous propensities of children, especially in relation to attractions and lures with obvious or latent hazards.
3. (2). To take all reasonable care to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and to take all reasonable care to see that the system is carried out.
4. The Commonwealth also became vicariously liable to pupils and parents for the acts and omissions of the teaching and other staff (whether or not these were supplied by another entity or agency).
5. The notion that a school teacher is in loco parentis does not fully state the legal responsibility of a school, which in many respects goes beyond that of a parent. A school should not be equated to a home. Often hazards exist in a home which it would be unreasonable to allow in a school. A better analogy is with a factory or other undertaking such as a hospital. Parents and pupils have in practice no choice of the classmates or other students. Injury occasionally occurs through foolish or sometimes malicious acts of other students. The school has the right to control what occurs at school, just as an employer has the right to control what happens in its undertaking. Where a student is injured by the negligence of another student (and perhaps by act or omission which if it were that of a person of full capacity would be negligent) without breach of personal duty by those conducting the school, and without act or omission by those for whom otherwise it is vicariously liable, it may be that the loss is best spread by treating the body conducting the school as vicariously liable just as an employer would be for its employee's acts or omissions; but it is unnecessary to decide this.
6. In this case the damage to the plaintiff may be attributed to causes for which the Commonwealth is liable, unsafe premises and lack of supervision of the children. It is enough that Introvigne's injuries were due to the inadequate system of supervision and care. The system did not provide for sufficient staff to exercise proper supervision over the children in the playground. As well, there was a failure to ensure that the system was carried out. The departure from the system by the teachers was understandable because of the death of the school principal, but this does not excuse the breach by the Commonwealth of this non-delegable duty."
"My Lords, if I find two toddlers, not quite four years of age, unaccompanied in a busy street, exposed to all the perils of a traffic accident, my natural reaction is to think that someone has been thoughtless, or careless, or negligent of their safety"
"…a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil…
(142) …The duty arises on the enrolment of the child. It is not confined to school hours or to the commencement of the teachers' hours of employment at the school. If the authority permits a pupil to be in the school grounds before the hours during which teachers are on duty, the authority will be liable if the pupil is injured through lack of reasonable supervision. In Geyer v Downs this Court held that the education authority was liable for injuries suffered by a pupil playing in the school grounds at about 8.45am although teachers at the school were not required to be on duty at that time…
143. The duty extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil's own conduct The measure of the duty is not that which could be expected of a careful parent…Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to "a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children".
"Education authorities do not owe to children for whose education they are responsible (absent relevant contractual provision to the contrary) a particular or unique non-delegable duty of care, in practical terms, giving rise to absolute liability. There is no doubt that the ordinary standard of care in the case of such authorities is a very high one. Their duties include the engagement of reliable, and carefully screened, properly trained employees, and the provision: of suitable premises; an adequate system for the monitoring of employees; and, I would think, because, regrettably, the incidence of sexual abuse seems to have been more common than had previously been thought, an efficient system for the prevention and detection of misconduct of that kind. In saying what I have, I do not intend to state comprehensively a catalogue of the duties to which the relationship of education authority and pupil may give rise. But I do agree with the Chief Justice that absent fault on the part of an education authority, it will not be personally liable in situations of the kind with which these cases are concerned".
" In the present case, I have ultimately concluded that the reasoning of the House of Lords in Lister v Hesley Hall Ltd  1 AC 215, the developing jurisprudence relating to the concept of a non-delegable duty of care in certain contexts, and underlying policy reasons, make it necessary for the courts to recognise the existence of a common law non-delegable duty of care on the part of a government body such as that represented by the eighteenth defender in respect of children allocated by the government to government-created residential schools such as St. Ninian's. Such a non-delegable duty of care may be particularly relevant where it is not possible to establish more traditional liability such as direct or vicarious liability. In the context of a non-delegable duty of care, liability may arise even where there has been no fault on the part of the government body.
 In reaching that conclusion, I have not overlooked the concerns expressed by Gleeson C.J., Callinan J., and Gummow and Hayne J.J. in Lepore, when they point out that an unrestricted development of the concept of a non-delegable duty of care could result in an unacceptable extension of liability. I also accept the force of Lord Bridge's observations in D & F Estates Ltd v Church Commissioners for England  1 A.C. 177, at pages 210D-E. However it seems to me that, in the context of abuse by staff of inmates of residential establishments, those concerns and observations are met and answered by the guidelines laid down by the House of Lords in Lister v Hesley Hall Ltd  A.C.215"
"…the underlying policy reasons referred to in paragraph  above include a perception that it is unacceptable for a government body responsible for a system of residential schools to have no liability for abuse inflicted on pupils by staff whose task it is to care for, supervise, or instruct those pupils, on the technical ground that certain functions (such as entering into contracts of employment with members of staff) have been delegated to others such as unpaid members of the community performing what might be seen as civic duties. If the obvious link of employer-employee is not clearly available in relation to the government body, then the pupil is left to attempt to recover damages in respect of injuries suffered at the hands of those placed in authority over him, from others fulfilling certain functions within the system. There is no reason in principle or precedent why a government body should in such circumstances be free of liability for abuse in a situation such as is envisaged in Lister - that is, where there is a close connection between the work which the staff were engaged to perform and the type of abuse inflicted. In such circumstances, the concept of a non-delegable duty of care at common law is in my view appropriate, and would be fair, just and reasonable to impose. The medical context offers a useful parallel, in particular the dicta of Lord Denning in Cassidy v Ministry of Health  2 K.B. 343; the observations of Lord Phillips M.R. at paragraph 63 of A v Ministry of Defence  EWCA Civ 641; and the views of Mason J. in Introvigne, referred to in paragraphs  and  of New South Wales v Lepore."
"In Burnie Port Authority v General Jones Pty Ltd. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, in a joint judgment, approved Mason J's observations in Kondis set out above. Their Honours labelled the element common to situations where non-delegable duties arise as "the central element of control", adding: "Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person." (footnotes omitted)
"Factors which support the existence of the duty include whether the relationship is one where the defendant has a high degree of control, the claimant is vulnerable, or the claimant has a special dependence on the defendant. The categories of situations where a non-delegable duty of care is owed are not closed, but courts should exercise care in extending them"
Application of Policy in the Present Case
"31. It may be that there is no single common law concept of non-delegable duty. Instead, the phrase seems to have been used to describe a number of situations in which special, non-delegable duties arise. If this is correct, then rather than seeking to state the doctrine in terms of a single principle, we should look to the different situations in which such duties have been found — an approach consonant with the traditional methods of the common law. In Lewis (Guardian ad litem of) v. British Columbia, 1997 CanLII 304 (SCC),  3 S.C.R. 1145, at para. 20, Cory J. suggested that these different situations comprise a "spectrum of liability", and that "[w]ithin that spectrum there are a variety of legal obligations which may, depending on the circumstances, lead to a principal's liability for the negligence of an independent contractor."
"He found that the defendant failed in his duty by reason of a lack of supervision. If this means anything, it must mean that it is the duty of a headmaster to see that boys are always under supervision, not only while at work but also at play, or when they are free, because at any time they may get into mischief. I should like to hear the views of the boys themselves on this proposition…."
i) Case-law in this jurisdiction is against it
ii) A restrictive approach should be taken to the circumstances in which a non-delegable duty may apply
iii) It would be a considerable expansion of liability
iv) No case has yet held the duty to exist even in the case of a hospital (and two recent appeal authorities have denied it), except one county court authority which was regarded as wrong by the Court of Appeal in a subsequent case, yet the whole purpose of hospitals is to ensure the health and well-being of their patients;
v) There is less cause for a non-delegable duty to exist where health and safety of pupils though important is not the whole purpose of the undertaking;
vi) There is no special reason in policy to hold there should be such a duty here (such as the desire to avoid the inequities of the doctrine of common employment, where employment is concerned, or the very special need for protection where inherently dangerous activities are pursued), nor those which appealed to Lady Paton in Hendron.
vii) Even if - which for these purposes I am prepared to assume – a school may be liable on a non-delegable basis for the actions of non-employee contractors providing educational services directly to children within its premises, this would in itself be an extension of the present common law. It would be a double extension beyond that for those who are not teaching (but life-guarding) and in premises under the regular control of others, well away from the school itself, to be held liable.
viii) By the same token, if an incremental approach is to be taken to recognising new duties, this is beyond a reasonable step further than any recognised case, and fairness and justice do not compel it.
ix) It is difficult to identify a consistent policy which might determine when a duty should be non-delegable, but it is likely to be related closely to those which underlie vicarious liability since that is liability which an undertaking may owe for the wrongs of others, albeit less universally so. More powerful arguments, or similar arguments but of greater strength and applicability, would seem necessary if the undertaking were to held liable not just vicariously but also for the wrongful actions of those it does not employ and cannot directly control. Yet the position of the contractor here is that of a specialist, as a trained life-guard, thus reducing the risk below that posed by in-house less trained staff, with none of the same strength of argument as to enterprise risk or deterrence;
x) Other reasons of policy tend against non-delegability. The injury was suffered on premises away from the school, not under its direct control. There is good reason to hold a truly independent contractor liable only as such, and no reason for his pockets to be regarded as so shallow (like those of the employed workman) that another should be the first recourse for compensation for his torts.
xi) There is no reason to assume that a duty to take the same degree of care as a parent would be broken by employing a life-guard for swimming lessons in a relatively lightly populated pool, or that a parent would not delegate his or her responsibilities for the health and safety of a child whilst swimming to such a person.
xii) The duty postulated by the claim here has no meaningful content (as drafted). A non-delegable duty should be capable of precise and careful formulation, precisely because of the width of its scope. If it were amended, to provide that the content is "to ensure reasonable care is taken by a life-guard to ensure children are kept reasonably free of injury while swimming at a local authority pool" this is a liability which in effect can only be discharged either by direct involvement with the (independent) employer of the lifeguard when laying down the system to which the guard is to work, to organise the supervision properly and adequately, or by suffering financial liability if the lifeguard fails to apply that supervision to the class in question. None is satisfactory in itself – 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.
xiii) Lady Paton in Hendron regarded it as important in deciding whether non-delegable duties might apply to know that neither vicarious nor direct liability would. They would then be the only route to redress in a deserving case. That is not, however, the case here.
Note 1 There is an allegation in the re-amended particulars of claim, paragraph 20, that Essex County Council was vicariously liable for (relevantly) both the contractor and the lifeguard, but although the point was never formally abandoned it merited little attention, and no enthusiasm, in the submissions of Mr. Turner Q.C. If it had merit, it would be unnecessary to consider the questions of non-delegable duty upon which the hearing did focus almost exclusively; and the principle in D & F Estates – see paragraph 14 below – excludes it. [Back] Note 2 A more recent decision, Uren v Corporate Leisure (UK) Ltd and Ministry of Defence  EWCA Civ 66 holds that an employer’s duty to assess the risks to employees arising out of activities he is to perform was non-delegable, but there is no detailed consideration of why this should be apart from the fact it is so closely related to the employer’s duty to take reasonable care for health and safety that it too should be considered non-delegable. [Back] Note 3 One of the court of 5 died after the hearing but before judgment: Gibbs CJ, Mason, Murphy and Brennan JJ agreed. [Back] Note 4 Kitto J had said "whether the authority be a Government or a corporation or an individual, ... the school authority undertakes not only to employ proper staff but to give the child reasonable care".
[Back] Note 5 see eg. at para. 269 [Back] Note 6 I have also noted that reliance was placed for the parties in Hendron’s case on the decision of the Supreme Court of Canada in K.L.B. v. British Columbia  2 S.C.R. 403, as being a case in which the court was at least prepared to contemplate a common-law non-delegable duty (again, in a case alleging abuse). However, I regard that as a case in which the decision, that there was no such duty, turned on the applicability and interpretation of a statutory regime. It does not seem to me to be helpful here, save for one observation which is quoted later in this judgment. [Back] Note 7 See especially paras. 10, and 61-62 above [Back]
Note 1 There is an allegation in the re-amended particulars of claim, paragraph 20, that Essex County Council was vicariously liable for (relevantly) both the contractor and the lifeguard, but although the point was never formally abandoned it merited little attention, and no enthusiasm, in the submissions of Mr. Turner Q.C. If it had merit, it would be unnecessary to consider the questions of non-delegable duty upon which the hearing did focus almost exclusively; and the principle in D & F Estates – see paragraph 14 below – excludes it. [Back]
Note 2 A more recent decision, Uren v Corporate Leisure (UK) Ltd and Ministry of Defence  EWCA Civ 66 holds that an employer’s duty to assess the risks to employees arising out of activities he is to perform was non-delegable, but there is no detailed consideration of why this should be apart from the fact it is so closely related to the employer’s duty to take reasonable care for health and safety that it too should be considered non-delegable. [Back]
Note 3 One of the court of 5 died after the hearing but before judgment: Gibbs CJ, Mason, Murphy and Brennan JJ agreed. [Back]
Note 4 Kitto J had said "whether the authority be a Government or a corporation or an individual, ... the school authority undertakes not only to employ proper staff but to give the child reasonable care". [Back]
Note 5 see eg. at para. 269 [Back]
Note 6 I have also noted that reliance was placed for the parties in Hendron’s case on the decision of the Supreme Court of Canada in K.L.B. v. British Columbia  2 S.C.R. 403, as being a case in which the court was at least prepared to contemplate a common-law non-delegable duty (again, in a case alleging abuse). However, I regard that as a case in which the decision, that there was no such duty, turned on the applicability and interpretation of a statutory regime. It does not seem to me to be helpful here, save for one observation which is quoted later in this judgment. [Back]
Note 7 See especially paras. 10, and 61-62 above [Back]