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Where the Defendant has assumed a particular responsibility to take care of the Claimant, the Defendant may have a non-delegable duty of care – a duty not just to take reasonable care of the Claimant, but to ensure that reasonable care is taken by whoever is actually discharging the Defendant’s function.
The Claimant was a pupil whose school had arranged for swimming lessons to be taught by an independent contractor in school hours. During a swimming lesson the Claimant got into difficulty and started to drown. She was resuscitated but suffered a serious brain injury.
The Claimant argued that the school should be held responsible even though it employed neither the swimming teacher nor the lifeguard. The Court of Appeal rejected the claim that the council owed the Claimant a non-delegable duty of care, but the Supreme Court has now reversed this decision and imposed liability for the negligence of the independent contractor.
In order for a non-delegable duty of care all of the following features must be present:
COMMENT: It has become even more important to check existing contracts, partnership agreements and other arrangements for appropriate provisions and ensure that new contracts and agreements contain every possible protection for your authority. For example: