Update
April 2009
Local Government/Public Sector
Accidents at School
Schools can be hazardous places if two recent decisions of the Court of Appeal are anything to go
by. However, whilst in one (decided under Health and Safety legislation) liability was established,
in the other (determined under common law negligence principles) it wasn't.
Health and Safety – Craner v. Dorset County Council 1
To deal firstly with the health and safety issue, Craner
concerned a school caretaker. He had sustained knee injuries
when a wheeled trolley he had been pushing along a paved
area hit a raised slab and came to an abrupt halt. The
Claimant's case was that the Council had either failed to
keep the paved area of the workplace free from obstruction
within Regulation 12(3) of the Workplace (Health, Safety and
Welfare) Regulations 1992 (S.I. 1992 No. 3004), or that the
Council had provided him with an unsuitable trolley within
Regulation 4 of the Provision and Use of Work Equipment
Regulations 1998 (S.I. 1998 No. 2306). However, the Council
contended that a raised paving slab of an inch or less could
not constitute a risk to health and safety and that the trolley
was suitable for its intended purpose of transporting Mr.
Craner's tools or other equipment around the school site.
Regulation 12 of the Workplace Regulations contains various
provisions governing the condition of floors and traffic routes
including that floors or traffic routes should not be uneven or
slippery. Regulation 4 of the Equipment Regulations
(amongst other things) requires employers to ensure that
work equipment is suitable in any respect which it is
reasonably foreseeable will affect the health or safety of any
person.
The Court of Appeal said that the evidence was painfully
thin. However, it came to the view that this 'was not a freak
accident'. And however much the Courts may not wish to
encourage a compensation culture, the fact remained that
the Regulations (i.e. those in 1992) exist. Longmore LJ
observed that to a large extent the Regulations replace the
old common law of negligence. Whilst he did not, however,
think that the trolley was unsuitable equipment within the
Equipment Regulations, the Council nevertheless failed to
resist the claim.
Sedley LJ added some trenchant and cautionary observations.
He pointed out that whilst both parties were represented by
very experienced personal injury solicitors, no expert was
asked to push a trolley along the path to see what happened
or to measure the upstand of the offending paving slab.
Instead the Council's solicitors 'threw all their effort into
casting doubt on the claimant's honesty. . .'. And he
concluded that:
'Having rejected this attack, the judge was left with a
claimant who was simply relying on the occurrence of the
accident as proof of breach of the council's statutory duties
and a defendant who was saying that it must have been a
freak occurrence. Neither side showed much interest in the
appropriate legal criteria. It was a lamentable basis on
which to invite a judge to decide a case, and the defendants
really cannot now complain if, given the exiguous evidence
and the lack of any focused legal argument, the judge
concluded that there was more probably than not an
obstruction on the path sufficient to create a risk of injury,
and found for the claimant.'
Common Law Negligence – Boys will be Boys – Orchard v.
Lee 2
By contrast, the decision of the Court of Appeal on 3 April
2009 in Orchard acknowledged that not every accident (no
matter how unfortunate) will fit within the law of
negligence. In issue was whether a thirteen year old
schoolboy (SL) was legally responsible for serious injuries
sustained by an assistant school supervisor when the boy
was playing tag in an area which was the social space for the
1 Craner v. Dorset County Council [2008] EWCA Civ 1323; CA: judgment 5 December 2008.'.
2 Orchard v. Lee [2009] EWCA Civ 295.
continued on reverse
relevant age group. The judge at first instance (despite
sympathy for the Appellant) found that this was a simple
accident caused by 'horseplay between two 13 year old boys
in and around an outside courtyard . . . boys doing what boys
do'. The Court of Appeal agreed.
Waller LJ said that the primary question should be whether
the conduct of the child is culpable 'i.e. whether it has fallen
below the standard that should objectively be expected of a
child of that age.' And that '. . .will be assisted by what injury
the child could foresee as likely to be caused by that
conduct'. Furthermore:
'. . .for a child to be held culpable the conduct must be
careless to a very high degree and where a child of 13 is
partaking in a game within a play area, not breaking any
rules, and is not acting to any significant degree beyond the
norms of that game, he or she will not be held culpable.'
And whilst it was not in issue that the boy owed a duty of
care:
'. . .if there is to be found a breach of that duty of care it
would have to be established that SL, a 13 year old, was
running about and playing tag in a way which was to a
significant degree outside the norm for 13 year olds. The
answer to that question can be assisted by considering
whether SL was conducting himself in the way he played
tag in a manner in which a 13 year old boy would
reasonably foresee there was likely to be injury beyond that
normally occurring while a game of tag was in progress.'
So Waller LJ agreed with the Judge at first instance that:
'. . .13 year old boys will be 13 year old boys who will play
tag. They will run backwards and they will taunt each other.
If that is what they are doing and they are not breaking any
rules they should not be held liable in negligence.'
Aikens LJ (in referring to the speech of Lord Porter in
Bolton v. Stone [1951] Ac 850 at 858) added that:
'Before holding that a person has acted negligently so as to
be liable in an action for negligence, the court must be
satisfied that a reasonable person in the position of the
defendant (i.e. the person who caused the incident) would
contemplate that injury is likely to follow from his acts or
omissions. Nor is the remote possibility of injury enough;
there must be a sufficient probability of injury to lead a
reasonable person (in the position of the defendant) to
anticipate it.'
Conclusion
Whilst statutory regulations governing areas previously
covered by common law principles will often impose a much
stricter standard of behaviour, clearly the Council's conduct
of the case in Craner didn't assist its cause. For Sedley LJ
pointed out, given the 'exiguous evidence' and 'lack of any
focused argument' the Council cannot complain as to the
outcome.
And Orchard (despite the unfortunate consequences for the
injured school supervisor) might be seen as another
milestone in the line of authority that seeks to rehabilitate
the concept of the accident and create a greater sense of
proportion surrounding the compensation culture. Either way
though, no-one – private sector organisation, public authority
or individual - is relieved of the responsibility to take
reasonable care of themselves and others and to comply
with relevant law governing their behaviour and
responsibilities. But for local authorities having to defend
such a case, the moral of Craner is to make sure your lawyers
have got their ducks properly in line.
Nicholas Dobson
Pinsent Masons
April 2009
He considered that since parents and schools are there to
control children, it would be a retrograde step to visit liability
on a 13 year old for simply playing a game in the area where
he was allowed to do so.
© Pinsent Masons LLP 2009
Should you have any questions please contact Nicholas Dobson (nicholas.dobson@pinsentmasons.com) or your usual Pinsent Masons adviser who
will be able to assist you further.
This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.
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