Health and safety update
Health and safety law update school safety:
separating myths from reality
Those responsible for school safety are often unsure of the extent of their liability. This article aims to clarify the law and differentiate between myths and reality.
About the author
Jacqueline Lane is a senior law lecturer at the University of Huddersfield.
Laws on health and safety, including the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 SI No 3242, apply to schools in the same way as to any other workplace. The risks are, however, somewhat different as children are naturally more likely to suffer injury through an accident, since they lack the maturity to foresee the potential hazards involved in their everyday activities and risk assessment must, therefore, be the responsibility of headteachers and governors. This can result in the seemingly over-the-top kind of decisions which make headlines in local newspapers and the tabloid press.
The Health and Safety Executive (HSE), to which such decisions are often referred, is required to rule on whether or not they involve a genuine risk to health and safety or are simply an attempt to prevent all possible risks, however improbable. The decisions of the HSE are well-documented on the ‘Health and safety myths’ section of its website.¹ However, as humorous and excessive as these often appear to be, there is a darker, serious side to the issue of health and safety within schools, especially when school trips are involved and safety is less within the control of the school.
Local authorities continue to fund and govern many state schools. (The governance of academies is slightly different and is not considered here.) Tortious liability of the local authority towards pupils in state schools is well-established. For example, in Smith v Martin and Kingston upon Hull Corporation [1911] 2 KB 775, the education authority was found vicariously liable when a pupil suffered severe injury after being instructed by her teacher to tackle a fire.
Although, currently, the duty is covered substantially by statute, the common law duty of care owed by local authorities and their employees in relation to the care and supervision of pupils has formed the basis of action in several cases. These cases have highlighted the need for adequate supervision of pupils in school (Palmer v Cornwall CC [2009] EWCA Civ 456); the need to avoid injury during supervised activities (Wright v Cheshire County Council [1952] 2 All ER 789, CA); and the responsibility for maintaining safe premises (Woodward v Hastings Corporation [1945] KB 174, CA).
A local authority may be sued in negligence if the school has not taken care of the child in a way that a prudent parent would have done. If, as a result of such action, the child is injured and this was a reasonably foreseeable consequence, the local authority may be liable. In Kearn-Price v Kent County Council [2002] EWCA Civ 1539, a pupil was struck in the eye by a full-size leather football while standing in the playground of his school during the pre-school period. He lost the sight in one eye as a result, and sued the defendant local authority in negligence. The Court of Appeal agreed with the first instance judge that the defendant was liable for failing to show such care as was reasonable in all the circumstances.
In Simonds v Isle of Wight Council [2003] EWHC 2302 (QB), a five-year-old child jumped from a swing during his school’s sports day, which was held at a nearby playing field, breaking his arm in the process. At first instance, the court found the council to be liable for the negligence of the
school staff; however, the Court of Appeal disagreed. The court said that there had been adequate staff supervision during the event, and the incident could be no more than an unfortunate accident. The judge took a practical approach, saying that if word got around that a school could be liable in such cases: ‘such events would become uninsurable or only insurable at prohibitive cost.
We take risks every day, but they are usually calculated risks. In schools, where there are vulnerable children who are unable to make those calculations and, therefore, more likely to suffer accidents, it is the staff - as the adults acting in loco parentis
- who must assess the potential risks and take the decisions on the children’s behalf. However, some examples of cases referred to the HSE demonstrate how the level of risk is often overestimated by headteachers and governors, or simply used as an excuse to impose an arbitrary rule.²
- Case 70 This school banned the use of yo-yos in the playground. The HSE ruled that there was no health and safety law which banned the use of yo-yos and, while recognising that there was a minimal risk of injury, described the ban as a disproportionate response.
- Case 74 This secondary school banned pupils from pushing a fellow pupil’s wheelchair because they had not received appropriate training to do so. The HSE ruled that there was no health and safety law preventing students from pushing wheelchairs.
- Case 197 The morning event at a school sports day was cancelled because of dew on the grass, which could have caused children to slip and fall. The HSE called this a ‘disproportionate response’, which could have been dealt with by taking simple precautions such as delaying the start time.
- Case 281 A school proposed a ban on children bringing fruit or rice cakes into school as snacks, in case another child suffered an allergic reaction to the foods. The HSE said that the school should have a policy to manage allergy risks, but should not use ‘health and safety as a reason for justifying a disproportionate ban on all snacks’.
The Department for Education (DfE) produces useful guidance on the legal duties relating to health and safety in schools.³ This has been done partly in response to the overreaction to potential legal claims, which has helped to create an unduly risk-averse climate in schools and sixth-form colleges.
An employer, which will have public liability insurance, must carry out risk assessments and then manage those risks that have been identified. Management of risk should be sensible and proportionate: activities taking place away from the school normally present a higher level of risk, and a thorough risk assessment should be undertaken, or at least a review of one carried out previously for a similar activity.
The HSE produces further guidance in its policy statement, School trips and outdoor learning activities: tackling the health and safety myths, which encourages schools and local authorities to focus on genuine risks and not be overcautious. The key issue is to avoid what are preventable accidents, such as the fatal drowning of 10-year-old Max Palmer at Glenridding Beck, in Cumbria, in 2002. The party leader, Paul Ellis, pleaded guilty to manslaughter and was given a one-year prison sentence.
Sadly, deaths and serious injury are not unknown on school trips, for example:
- Rochelle Cauvet, aged 14, and Hannah Black, aged 13, were drowned while on a ‘river walk’ in North Yorkshire in 2000.
- Joseph Lister, aged 14, died during a potholing trip in North Yorkshire in 2005.
- Paddy Dear, aged 16, was found dead at the bottom of cliffs, in March 2016, while attending a field trip to a study centre in Pembrokeshire.
- Jessica Lawson, aged 12, drowned on a school trip in France in July 2016.
However, as tragic as these deaths were, when put into context (there are approximately 7–10 million pupil visits each year) such occurrences are very rare. Nevertheless, errors of judgment, shortcomings in checking procedures, and breakdowns in communication combined to bring about these catastrophic incidents, and schools must take valuable lessons from such experiences.
Headteachers will be aware of unfortunate cases that result in the death or injury of pupils, and anxious to avoid both the human and financial costs of a finding of negligence or criminal liability under the health and safety legislation. Still, banning pupils from playing with toys such as yo-yos, or eating fruit or rice cakes in case a fellow pupil is allergic to these snacks, demonstrates an overcautious approach to the smallest of risks. Children need to learn to manage small risks themselves - in a safe and controlled manner - and will derive no long-term benefit from being wrapped in cotton wool while in a school environment.
1 Visit: www.hse.gov.uk/myth/index.htm
2 See ‘Myth busters challenge panel findings – Education’, available at: www.hse.gov.uk/myth/myth-busting/education.htm
3 See, for example, Health and safety: advice on legal duties and powers for local authorities, school leaders, school staff and governing bodies, available at: http://tinyurl.com/mwtytak
4 Available at: www.hse.gov.uk/services/education/school-trips.pdf