Professional Documents
Culture Documents
In this article, the authors sought to have discussion in depth of non-delegable duty
from the duty of care in the law of negligence. For that reason, in the beginning, the authors
will briefly talk about negligence and afterwards go deeper into the three-issue formula of the
existence of a duty of care, the breach thereof and the causal relationship of that breach to the
ensuing damage occasioned to the party to whom the duty of care is owed. After that, the
authors discussed on the non-delegable duties which they allude to Woodland case where the
diverging opinions had existed. The authors take us into the ruling and discussion on this very
important issue of law in the English law of negligence, which is in including category of a
non-delegable duty of care on the part of the duty-ower.
SUMMARY
Meaning of Negligence
Briefly, the authors call to mind the legal meaning of negligence referring to Blyth v.
Birmingham Waterworks Co, in the following words; "Negligence is the breach of a duty
caused by the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do."
It is deduced that the duty of care in the law of negligence is a duty required of a
reasonable man, and is confined to observing ordinary care and skill.
directly affected by the said acts or omissions. Besides, In Blyth v. Birmingham Waterworks
Company, the Court determined the existence of a duty of care on the application of a
'prudent and reasonable man' test also known as objective test.
Then the authors refer to statement of Lord MacMillan in the Donoghue v. Stevenson
case again for further discussion which further reflects the readiness of the English Court to
enlarge or expand the instances of duty of care situations in the law of negligence so as to
meet with the demands and the needs of the changing social standards and circumstances in
society. Thus, any discussion on whether a duty of care in the tort of negligence were said to
include a non-delegable duty to take care must therefore be undertaken in the context of a
'prudent and reasonable man' test as propounded in the decision of Blyth v. Birmingham
Waterworks Company ,the neighbour principle in Donoghue v. Stevenson and the open nature
of the categories of negligence as propounded by Lord MacMillan.
A duty to take reasonable care as opposed to a duty to ensure that reasonable care is
taken.
It is recognised that the duty to take reasonable care could be discharged by the dutyower by entrusting the performance of that duty to an apparently competent independent
contractor. This right of the duty-ower to entrust the performance of his duty to an apparently
competent independent contractor is an important feature of the general law of negligence,
the departure from which must be justified on policy grounds as laid down in the case of
Dyson LJ in Farraj v. King's Healthcare NHS Trust. Accordingly, this position is the majority
decision in Woodland.
The rationale behind the decision is found explicitly expressed in the judgment of Kitchin LJ
in the following words which further summing up to;
"True it is that the Plaintiff suffered her injuries during the course of the school day, and
whilst taking a swimming lesson, which I am prepared to assume, formed a part of the
national curriculum. But on the pleaded case, she did so in an environment which was not
under the control of the school staff and whilst engaged in an activity which was not being
conducted or overseen by the school staff. The school had no swimming pool and it is not
suggested that its staff were trained as life-guards or had the necessary expertise properly to
supervise children taking swimming lessons".
"In all the circumstances I do not believe it would be fair, just or reasonable to impose upon
the education authority the non-delegable duty....and it cannot be inferred the education
authority ever assumed or accepted that duty. It never undertook that it would itself teach its
pupils to swim, nor did it undertake the care, supervision or control of the pupils while they
were taking swimming lessons. To the contrary, I think the education authority might
reasonably have been criticised had it not engaged a suitable and competent independent
organisation with appropriate skills and access to appropriate facilities to conduct the
swimming lessons for which the education authority was evidently not itself equipped.
The views conveyed through them are very much in accord with the well established
principles of the law of negligence as clearly laid down in mentioned cases of Blyth v.
Birmingham Waterworks Co, and Donoghue v. Stevenson, both of which bear out the fact that
the legal duty to exercise due care, in the law of negligence is such duty that is within the
scope of the duty-ower, and nothing beyond that. This is so as the education authority, had
acted in a reasonable manner by observing the ordinary care and skill required of it, in
entrusting the care of the Claimant with parties who had the necessary competence and skill
to perform the duty so entrusted.
Tomlinson LJ, who gave the main majority decision in Woodland, endorsed the
approach taken by Langstaff J. In principle, what Langstaff J said is that, for mishaps such as
an accident at the swimming pool where employees of a different entity were providing the
swimming lessons over which the education authority had no control, there was no question
of the education authority being held vicariously liable for the wrongs committed by them.
The Court of Appeal in its majority decision, through Tomlinson LJ, agreed with that.
All in all, the very crucial understanding to the majority decision of Woodland is that the
liability of the duty-ower in such instances will not be a liability for a breach in delegating the
duty but rather in not ensuring that the delegation is to a person or persons possessed with the
competence and skill to perform the duty so entrusted.