Case No: 9MA91650
Neutral Citation Number: [2015] EWHC 820 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/04/2015

Before :

THE HONOURABLE MR JUSTICE BLAKE
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Between:

	ANNIE RACHEL WOODLAND (A PROTECTED
PARTY REPRESENTED BY HER FATHER AND LITIGATION FRIEND, IAN WOODLAND	Claimant	
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	DEBORAH MAXWELL
- and -
ESSEX COUNTY COUNCIL

JUDGMENT ON THE PART 20 PROCEEDINGS

	Defendant	

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Stephen Miller QC and Richard Smith (instructed by DWF LLP) for the 2nd Defendant
Steven Ford QC and Kathryn Duff (instructed by Essex Legal Services) for the 3rd Defendant

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Judgment
The Honourable Mr Justice Blake: 
1.	On 13 February 2015 I handed down judgment in the claim brought against the second and third defendants for injuries suffered when the claimant nearly drowned on 5 July 2000 during the course of a school swimming lesson. In that judgment I concluded that both  Deborah Maxwell  (the second defendant) as the lifeguard on duty at the pool and Paula Burlinson as the swimming teacher in charge of the  group of advanced swimmers  of which the claimant was a member, were liable in negligence. It was agreed that the third defendant’s claim for a contribution should be adjourned pending the findings of fact and thereafter could be determined by written representations that have been made to me between 5 and 16 March 2015.

2.	By reason of the decision of the Supreme Court [2013] UKSC 66, it has been established that the third defendant owed the claimant a non-delegable duty of care in the conduct of school swimming lessons. By reason of my conclusions in the principal action, the third defendant is in breach of that duty, although it had no role in the provision of the swimming lessons.  

3.	Neither Ms Maxwell nor Ms Burlinson were employed by the third defendant. They were both swimming teachers engaged to provide their services by the first defendant (Beryl Stopford) against whom the claimant discontinued proceedings shortly before the start of the trial. The claimant did not proceed against Paula Burlinson because she was not insured for the claimant’s injuries suffered at the time of the incident. By contrast, Ms Maxwell was insured through the professional association of swimming teachers for this damage. Although no finding has been made on the issue, for the reasons given in Ms Stopford’s witness statement, there were reasons to believe that both Ms. Maxwell and Ms. Burlinson were self-employed for the purposes of the swimming lesson in which the claimant received her injuries.

4.	The third defendant brings a claim for a contribution against the second defendant pursuant to Civil Liability (Contribution) Act 1978 s. 1. By s.2 (1) of the Act the amount of the contribution recoverable from any person shall be ‘such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question’.  S 1 (2) permits the court to direct that that the contribution shall amount to a complete indemnity.

5.	The third defendant seeks first a complete indemnity of 100% of its liability to the claimant from the second defendant and in the alternative a contribution of 50%.

6.	The claim for an indemnity is based on the following propositions:

i)	 A contribution claim made by an employer who has not been personally negligent but is vicariously liable for the damage caused an employee may be a 100% indemnity.

ii)	If the claimant had sued both the second defendant and Paula Burlinson for negligence they would be joint tortfeasors and jointly and severable liable for 100% of the damage caused to the claimant.

iii)	The third defendant was not personally negligent and should thus be able to receive the totality of its liability to the claimant against the swimming teacher who was insured as the claimant would have been able to, if she had sued both Ms Maxwell and Ms Burlinson.

7.	Both parties refer me to the judgment of Hobhouse LJ in Downs v Chappell [1997] 1 WLR 426. In that case the plaintiff successfully sued the first defendant for deceit in misrepresenting the value of a book shop business that it was selling and the second defendant for negligently assessing the value of the business when asked to do so by the claimant.  There were contribution proceedings between the defendants where the second defendant objected to a finding of 50% contribution on the basis that negligence was less culpable than deceit. Hobhouse LJ rejected this contention observing that the claimant relied on the second defendant’s valuation in order to proceed with the purchase. He concluded:

‘The extent of a person’s responsibility involves both the degree of his fault and the degree to which it contributed to the damage in question. It is just and equitable to take into account both the seriousness of the respective parties’ faults and their causative relevance. A more serious fault having less causative impact on the plaintiff’s damage may represent an equivalent responsibility to a less serious fault which had greater causative impact.’ 

8.	I do not find that it is just and equitable that the second defendant indemnifies the third defendant for the totality of the claimant’s damage. The second defendant is not an employee of the third defendant who is liable for her actions despite, for example, a gross breach of trust or a failure to obey directions or training instructions of the employer. 

9.	The third defendant’s personal responsibility to the claimant should not be passed on entirely to another just because there is an insurance company standing behind them. If Ms Burlinson had been insured or had substantial assets of her own, there is no reason why the third defendant could not have sought a contribution from her as well as Ms Maxwell in that eventuality  the just and equitable exercise would be undertaken having regard to the  comparative assessment responsibility and causative impact between them.  

10.	I reach no conclusion on what the position would have been if the claimant had sued both swimming teachers personally. I find that their responsibility for the injuries caused to the claimant is different.

11.	The third defendant called Ms Burlinson as a witness and to some extent sought to defend her interest in the proceedings. It seems to me in the circumstances that I should find what is just and equitable by way of contribution by examining the comparative degree of fault and contribution as  indicated by  Downs and Chappell. This is the exercise that I undertake in the following paragraphs of this judgment.

12.	I find that the prime responsibility for the claimant’s injuries lay with Ms Burlinson who was the teacher in charge of the group of advanced swimmers, was responsible for them entering the water and undertaking the tasks set in the lesson, and was under a duty to constantly monitor those in her charge.  I was satisfied that that she seriously under-estimated the time the claimant was in the water and was unable to explain why she was not observed to be in difficulties when a few feet away. 

13.	By contrast, Ms Maxwell was the lifeguard on duty for the whole pool, located on the opposite side of the pool to where the claimant’s swimming lesson was being conducted, and would have been entitled to give her primary attention to the group of less experienced swimmers immediately in front of her. On any view it would have taken a number of seconds for her to have been able to respond to a near drowning incident once observed. Nevertheless, she was performing the lifeguard function that the pool rules and past experience both emphasised was the primary role in securing the safety of swimmers.  She was trained in rescue procedures whereas Ms Burlinson was not.

14.	Making the assessment of comparative culpability and causative responsibility between the two people whose personal conduct fell below the standards to be expected of them, I assess that Ms Maxwell’s contribution to be one third. 

15.	In all the circumstances, I find that it is just and equitable to find for the third defendant in the contribution claim in the same figure of one third.  I will order Ms Maxwell should contribute one third to the third defendant’s liabilities to the claimant both in respect of damage and legal costs.