Thursday, 22 December 2011

Woodland v The Swimming Teachers’ Association & others [2011] EWHC 2631 (QB): deep end

Another sad personal injury case; the crumb of comfort in this one was that damages were definitely going to be paid to the claimant, it was “just” a demarcation dispute as to which defendant would pay up.

There were five of them; the STA, a lifeguard, a swimming teacher, Essex County Council and Basildon District Council.  The scene was a school swimming lesson in Basildon; the lessons were put on by the swimming teacher, she employed a lifeguard, Basildon owned the pool and Essex ran the school.

Annie Woodland was a good swimmer and had been put in the top group, but something went wrong.  She was spotted in the pool unconscious and underwater.  She suffered serious brain injuries.

Damages are to be determined, and will be paid by an insurance company; but which insurer?   Everyone involved may have had some contribution to the accident.  This particular case saw Essex trying to get the case against it thrown out.

And it did.  It did not involve any development in law – indeed this was the point Essex made; the law on this was well-established, Essex did not owe a stringent duty of care to each and every individual pupil.  Like any parent, it could arrange school visits and suchlike and expect those in charge of those visits to look after the children.

The interesting aspect of the case was the attempt to widen this duty by Annie’s QC.  He argued that the nature of the duty had changed over time, and that other jurisdictions – he cited a Queensland case – had said that the local authority could not delegate the duty of looking after a schoolchild while at school.

The law on duty has changed over the years; back in Victorian times the courts, staffed by the gentlemanly or noble classes, were quite keen to protect factory or landowners, who also came from the gentlemanly or noble classes.  Duty was extremely narrow.  The gate to the garden of compensation was flung open when Mrs Donoghue suffered a toxic shock from thinking she may have ingested an involuntary gastropod; they were widened further over the years until Junior Books v Veitchi practically demolished the fence.  Which has been re-constructed over the years to get back to where we were in about 1971.

But the “who is your neighbour?” test is flexible – it is perhaps unsurprising that Annie’s QC tried to extend it once more to the local authority.  After all, that would forestall any risk of winning against a defendant who could not pay and whose insurers declined to step in.  It did not work in this case, as the Court stood on its existing principles rather than budge them.  Sound reasons, too, such an extension of liability would have an effect on insurance, and would open up the floodgates to other claims – babysitters are one thing, but imagine a school football coach’s liability for a foul by one of his pupils, and extending that to the local authority employer – but nobody can say that that will never be opened in future.

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