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Introduction:

This article sets out some of the background some and examples of prosecutions and litigation against UK schools.

Whilst Scottish Law and its' Legal System differs from that in England and Wales the writ of the enforcing and regulating body the Health and Safety Executive(HSE) runs across the border and matters are decided in the Criminal Courts.

Litigation takes place in the Civil Courts and, in the case of Health and Safety usually revolves around aspects of the LEA. Owner, school and teachers' duty of care to children. Almost all of these cases are civil actions taken by parents on behalf of the child for damages for injuries subsequent to accidents.

Prosecutions:

The Health and Safety Commission is the actual agency of which HSE is the executive branch have published an Enforcement Policy which sets out very clearly the parameters for, and circumstances in, which the HSE should take action to enforce the Health and Safety Law and Regulations.

Enforcement of H&S law in the past targeted 'Directors' and 'Company Secretaries' and clearly this had a business and commercial bias.

The current HSC Enforcement Policy appears to be targeting enforcement action against managers as well as Directors and now seems to be focused on both the public and private sectors equally. This is also clarified in the Guidance to the Management of Health and Safety at Work Regulations which talks about 'organisations' being schools, colleges, voluntary bodies, councils etc.as well as companies. Personal liability to prosecutions under the safety law has been extended to person who exercise a similar role to directors and company secretaries. This would certainly include Heads as the CEO of their schools but could also be interpreted to mean Directors/Assistant Directors, or those persons in the school employer's organization directing and organising the H&S function.

In short any person or any organisation can be liable to prosecution under H&S laws and regulations for a range of offences.

Staff, or others can be liable for putting the health and safety of others at risk by acting negligently or interfering with safety equipment.

Others can be liable for advising or conniving to promote unsafe acts.

However,the main area where a cold chill runs down the spine for teachers and schools is the potential for a child to be killed and a manslaughter charge to be made.

Three points here are worth considering:

1. All the manslaughter charges so far made have been on the basis of gross negligence.

2. HSE does not bring this charge it has a protocol with the police where both of them run TWO investigations side by side and the police hand a completed file to the DPP or the Procurator in Scotland. In England and Wales it is the DPP who makes any charge of manslaughter and gross negligence is acknowledged by lawyers to be difficult to prove. However teachers have been jailed for manslaughter and last year a Head teacher was fined for offences against Safety Laws.

3. An old lawyer's adage adopted by H&S professionals is that no one has ever been prosecuted for following good practice.

Good Practice

Follow good practice and you will be secure.

Almost all the manslaughter charges made against teachers have been involved with offsite visits. I estimate about 1-2,000,0000 school visits have been made over the same period that there have been about 6 prosecutions for manslaughter.

The most recent one was made against a teacher who was leading a visit in Cumbria where a 10 year old was killed in a 'plunge pooling' incident and the leader was charged, found guilty and received a sentence of one year in jail.

HSE actions are much more likely to be for breaches of the law and regulations.

Educational Visits carry with them a serious direct risk to staff of prosecution if they have been negligent.

Even if no one is physically harmed, and thus there is no 'death or harm by gross negligence' criminal charges to be faced, but if there could have been ,the HSE can take action against individuals under H&S law.

This has already happened with one Head teacher in Scotland.

Good Practice for Visits has been clearly spelled out in publications by the DfES and the Scottish Executive. If you go to the HSE's new website at http://www.hse.gov.uk/schooltrips you can have access to the full scope of good practice as regards visits.

Primary Schools and breaches of the H&S law.

The actual numbers of prosecutions from 1999 -2003 are actually very small only about 25 in total are recorded as relating to Primary Schools on the HSE Database.

The following is a breakdown of what these prosecutions were for:

Breach Against Number 1999 -2004
HASAWA 8
Electricity Regs 3
Manual Handling Regs 2
Management HSW Regs 5
Construction Design Regs 3
Work Equipment 3
Other 3

So you can see that the main features of prosecutions is for offences under the Act itself and for breaches of the Management of Health and Safety at Work Regulations.

An important aspect is that many of these breaches involved contracts, so it is clear that your control of these needs to be secure.

If you are visited by an inspector they will not generally prosecute immediately.

Though the Health and Safety Commission(HSC) of which HSE is the executive branch, say that they do use prosecution as an important lever to help drive their policy targets forward.

Inspectors are much more likely to give advice and information or in the case of breaches to issue improvement or prohibition orders

Enforcement

Out of 75 breaches prosecuted by HSE in Primary Schools 1997 - 2003 for which records are available in HSE's Database, none nominated the Headteacher as the defendant. In all of them an LEA or other Employer/Contractor was the defendant. The picture for the make up of breaches is given below.

This was the picture up to 2003 but this picture has changed and there have been at least two actions against Heads. For a Head teacher with a criminal conviction, options become limited. Even if they go for a new job, Disclosure means that the conviction will show on the record. So it is more and more important that any Head can prove they are effectively managing safety.

This is precisely why we at Swan Education produced the Head teacher's Safety Management Toolkit.

HSC/HSE says exactly what they mean and are transparent. They also produce masses of clearly written information free.

References are given to a large selection of these which are relevant in the Toolkit 'Useful Links'.

We said earlier that no one has ever been prosecuted for following good practice. You may not have the formal documentation but if you have taken care that you have records this always helps.

Reasonably Practicable Safety

Your school must be safe 'so far as is reasonably practicable' This simply means that you cannot work miracles and that safety has to be judged against what is achievable. However, lack of money is not an adequate excuse if a Risk Assessment shows that something needs to be done.

Reasonably practicable does mean that if the costs of protecting completely against a particular risk is too expensive measured against possible outcomes or not possible, then you have a defence. However, all of this is a judgement and must be measured against good practice.

Unilateral decisions about what is or is not reasonably practicable should be guarded against. Take advice or at least research the matter and remember to record any findings.

You can aim for perfection over a measured time scale. It all depends on the base that you are starting from. HSE generally aims to encourage and advise. They generally prosecute only in extreme situations.

Litigation

A good Safety Management System protects you from Litigation and also ensures any HSE is a very remote possibility.

The courts are far more frequently used nowadays but even if you are involved in an action if you have taken the prior precaution of having a documented system the chances of success of any claimant are much reduced.

Litigation in the courts has demonstrated that teachers and the school/employer cannot be held responsible for every accident in school hours, or at any time that the children are in the control of schools e.g. during educational visits.

The courts accept that some accidents happen no matter how much care is taken or how well planning and supervision is carried out.

Where an accident happens in such cases, the teacher/school cannot be held liable.

Good Practice is a defence and the Headteacher's Safety Toolkit provides you with proof of your good practice and guidance on what is acceptable.

Some important points flowing from the following cases which can give a good general guide to the headteacher are:

' Is an accident "foreseeable" or not?

' Is the risk very low and are the costs of mitigating the risk reasonable and proportionate?

' In "horseplay" there is consent and it needs recklessness or a high degree of carelessness to breach the duty of care.

' Does the school have systems in place to reduce risk and is it following good or accepted practice?

' Was the activity leading to the accident "play" or something else.

Areas most frequently addressed by the court during litigation include:

' Checks on staff competence and training

' Assessment of what is generally accepted as good practice

' Cross checking that suitable preparations and precautions been put in place.The following are a few important court cases regarding good practice and duty of care in H&S matters which may, by example illuminate some of the matters decided in the courts.

Court Cases:

2003 Simonds v Isle of Wight LEA

A five year old returning to school from lunch at home went to play unsupervised on swings in the school grounds and broke his arm.

The LEA/school won and the judge held that :

' there was no "causative event" for the accident.

' the child was playing alone and that the school had an adequate way of managing the swings.

' no playground could be free of hazard and it was as unreasonable for the school to lock the swings as it was to rope off trees in a playing field.

' since the mother had not delivered the child back into the care of the school there was no breach of duty on the part of the school.

1997 Wilson V the Governors of the Sacred Heart RC Primary School

A child going home at end of school day was struck in the eye by another child's coat .

The Governors won and the judge held that:

' Whilst the school supervised at break and lunchtimes it was not commo practice for children to be tightly supervised at end of day.

' The accident could have happened just as easily outside the school gates

' The school had not breached it's duty of care or acted negligently.

1998 Mullin v Richards

Two children had a "swordfight" with plastic rulers. One of the rulers broke entering a pupil's eye and causing permanent damage.

The claim for damages was dismissed on the basis that:

' There was insufficient evidence to prove that the accident was foreseeable in what had been no more than a childish game.

' The teacher had not breached their duty of care

Other areas for Litigation:

Litigation over the years has clarified some of the boundaries of duty of care and in complex litigation led areas more and more schools/LEAs/employers are investing in insurances to cover issues such as breach of duty of care in:

' Bullying
' Actions of poorly or unsupervised pupils
' Undiagnosed or misdiagnosed special needs
' The alleged adverse health effects of drinking, smoking, or drug taking
' Failure to achieve the expected results at Common Entrance, GCSE or A level
' Inadvertent breaches of European Union legislation
' Breaches of the Health and Safety legislation, Data Protection, the Children Act
' Inadequate sports and outdoor activity supervision
' Failure to teach the correct syllabus
' Libel or slander
' Incorrect advice given in an official capacity
' Unfair dismissal
' Infringement of copyright