Health and Safety Prosecutions and Litigation in UK Schools

A Head Teacher’s Safety Management Toolkit Article

HEALTH AND SAFETY PROSECUTIONS AND LITIGATION IN UK SCHOOLS
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 brought.

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
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.

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

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

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 AgainstNumber 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 they say that they do use
prosecution as an important lever to help drive the HSC’s targets
forward.

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

Good news about 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.

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. 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.

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. But it 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 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.

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 ny accident involving games or "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
common 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 claimfor 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 hadnot 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