In a move away from strict liability in terms of accidents at school, the courts have said that they are sometimes nobody’s fault. Kris Lines explains

In the latter half of 2008, the courts dealt with a trilogy of cases on the liability of supervisors when a child in their care was injured. What is especially notable about these cases is that in each, a decision of the High Court was later overturned by the Court of the Appeal.

In this two-part feature, we will look at why these decisions were reversed and at their implications for teachers and school support staff.

In this article, we explore the facts of the three cases; the effect of the Compensation Act 2006; inherent risk; and the nature of supervision.

The cases

Harris v Perry (2008)
Mr and Mrs Perry (the defendants) had hired an inflatable bouncy castle and bungee run for the weekend to celebrate the 10th birthday of their triplets. After obtaining the school’s permission, the Perrys erected both inflatables on a school field adjoining their garden.

At the same time, at the other end of the field, a father was coaching a football session, for his son and a number of other 11-year-old boys.

After the football session had ended, the claimant asked his father for permission to go on the inflatables. His father refused permission — but the claimant walked down the field with his friend anyway and managed to invite himself to the party organised by the Perrys.

Very soon after climbing onto the inflatable, the claimant performed a somersault onto his back. Before he could get up, however, an older and much heavier boy also performed a somersault, striking the claimant on the forehead and causing serious brain injuries. The claimant sued the Perrys for negligence.

The claimant alleged that Mrs Perry had failed to:

  • maintain continuous supervision
  • forbid children from performing somersaults
  • ensure that only children of similar height and weight were playing on the apparatus at the same time
  • Was there a breach of duty?

The High Court originally awarded the claimant damages for the three breaches of the duty of care (above). All three grounds were, however, overruled by the Court of Appeal, which found in favour of the Perrys.

While the defendant was judged by the standard of care that a reasonably careful parent would show for their children, of particular note to schools is the fact that the court explicitly stated that the same test would also apply to any other reasonable provider or supervisor of inflatables.

Poppleton v Portsmouth Youth Activities Committee (2008)
Gary Poppleton was a novice climber who suffered tetraplegia while bouldering (low-level climbing, performed without ropes) with a group of friends at an indoor climbing centre. He tried to copy his more experienced friend’s jump from the wall, to grab hold of a buttress in the middle of the room, but missed his footing and crashed head-first onto the safety matting below.

Gary alleged a failure of the climbing centre to:

  • maintain continuous supervision
  • warn him of the risks of participation in the activity

The High Court, awarded Gary damages because the centre failed to warn him of the ‘hidden’ dangers of falling onto a mat. Damages were reduced by 75 per cent to reflect a high degree of contributory negligence on Gary’s part.

This judgment too was reversed by the Court of Appeal, which found in favour of the defendants, holding that the risk of falling from the wall and landing badly on the mats in the course of the activity was an obvious risk.

The claimant was an adult, participating of his own free will and capable of consenting to the activity, which differentiates Poppleton from many school cases.

But schools should note this case for its stance on the use of safety matting: activity participants should be aware that such matting cannot completely eliminate the risk of serious injury if they have an awkward fall.

R v Porter (2008)
The claimant was a three-year-old child who attended a private school set in the grounds of a disused quarry. The playground was divided into two levels, and access between these areas was via a set of brick steps. During the morning break, children on both of these playgrounds were supervised by one teacher on the upper level.

One day, when the teacher was distracted and absent for about 30 seconds, the claimant went down the steps, jumping the last four.

As he jumped, he lost his footing and fell, landing face-down on the bottom step and suffering head injuries. He later died in hospital after contracting MRSA.

The claimant’s parents alleged a breach of section 3(1) of the Health and Safety at Work Act 1974. They said that the school had failed in its duty to ensure the safety, so far as was reasonably practicable, of children in the playground.

The defendant head master was convicted of the Health and Safety Act offence in the Crown Court. The Court of Appeal later quashed his conviction, finding that the head master’s conduct had not exposed the children at the school to any unacceptable risks.

  • How did other schools compare?

The fact that other schools (with worse safety records) had a higher level of supervision during break times was irrelevant, as there had been no unacceptable risk.

The Compensation Act 2006

Although neither Harris, Poppleton nor Porter explicitly mentions the Compensation Act 2006, the Act’s influence is evident in each of the judgments — in particular, that of section 1 of the Act.

A return to common sense
Under s.1 of the Compensation Act, a court can consider whether the requirement to take certain steps might prevent a desirable activity from being undertaken, or discourage people from performing certain desirable functions.

While s.1 does not represent new law, it has seemed to herald a return to common sense, and a move away from strict liability and the view that accidents are always somebody’s fault.

What is an acceptable risk? 

Within this context of looser regulation, it is particularly important to review what constitutes ‘risk’. In all three cases discussed here, the courts held that there was an inherent risk associated with performing the activity in question.

But the fact that this risk existed did not automatically lead to the presumption that the risk was unacceptable.

Instead, the Court of Appeal in Porter held that the risk had to be both:

  • real (as opposed to fanciful or hypothetical), and
  • over-and-above the risks inherent in day-to-day living

So, for example, there are no additional risks posed by walking along a busy school corridor, as pupils would encounter many of the same problems on a Saturday afternoon walking around at the local shopping centre.

‘Don’t smother them in cotton wool’
It also worth noting the comments of Lord Phillips in Harris that: ‘It is impossible to preclude all risk
that, when playing together, children may injure themselves or each other, and minor injuries must be commonplace.’

What the courts are therefore suggesting is that while the duty of a supervisor is to reduce any risk to an acceptable level, this duty does not extend to ‘smothering pupils in cotton wool’ to prevent every minor injury. Rather pupils of all ages (even those of three and four) should take a certain amount of responsibility for their own safety and behaviour.

The school’s accident record
It is interesting that the Court of Appeal in Harris also commented that whether a risk existed or should be seen as foreseeable by the defendant was based on the defendant’s knowledge of the frequency and severity of any injuries in that particular activity.

The lack of any similar accident occurring is therefore a crucial factor to be considered in any determination.

This would seem to suggest that schools with better accident records have more leeway in deciding what constitutes an appropriate level of supervision for pupils.

Supervision

While identifying the level of risk is important, without doubt the most important principle underpinning all three cases is that of supervision (or an alleged lack of). Indeed, failure to provide continuous supervision was specifically identified by all three claimants as the major cause of their injuries.

What should schools do?
Given that the provision of supervision for pupils is one of the primary roles of a school, it is worth exploring in detail the implications of these cases for teachers and support staff.
The first point to note is that, because of the ages of the pupils, schools assume a responsibility to protect the general safety of pupils during their time on their premises. This assumption of responsibility immediately differentiates a school  scenario from that of Poppleton.

The principles in Poppleton will, however, apply if the school premises are being used in the evenings by other groups or organisations.

How much supervision? It is also important to note that supervision does not need to amount to constant surveillance or a continuous uninterrupted vigil if the risk in question has been reduced to an acceptable level. Indeed, the Court of Appeal in Harris was particularly adamant that it was impractical and against the public interest for parents to keep children under constant surveillance. Although Porter, was decided by the criminal rather than civil courts, the judgment is remarkably similar on this point. Porter is, however, important in its own right as it specifically applies this principle to teaching staff.

More than one group of pupils

Porter

and Harris also both seem to suggest that it is possible for staff to supervise multiple pieces of apparatus or groups at the same time — providing that staff are within the vicinity of both activities and are capable of intervening if necessary.

So a single teacher can be allowed to supervise the whole playground area if s/he is positioned in an appropriate spot.

What about the case of Spowart?
At first glance, this practice of supervising multiple groups seems to conflict with Spowart v Nottinghamshire CC [2006] (unreported) 23rd June, where a teacher was found liable for turning her back on a playground slide in order to deal with another pupil.

It is, however, possible to reconcile the cases if we consider that in Spowart, the teacher had already identified a potentially serious problem arising on the slide.

Liability therefore attached to her failure to deal with this problem appropriately (having previously identified that it posed a safety issue) rather than with the fact that she was supervising multiple groups per se.

Exceptional danger

The Court in Harris did suggest, however, that there would be circumstances in which a failure to exercise constant supervision over a group could amount to an unacceptable risk — and, therefore, to negligence.

For example, allowing children unrestricted access to swimming facilities or shooting ranges would expose them to an unacceptable degree of risk, given the dangers inherent in both activities.

Good news for schools

The most important law arising from the three negligence cases we have discussed here is:

  • establishment of the extent of supervisory responsibility
  • recognition that risk cannot be completely eliminated — but should be reduced to an acceptable level

The High Court has traditionally been more sympathetic towards claimants than the Court of Appeal. But the latter has now become more defendant-friendly — accidents do sometimes happen without being somebody’s fault. It remains to be seen just how much risk the courts are prepared to allow.

Kris Lines is head of sports law at Staffordshire University, and a British Gymnastics coach and assessor

Find out more

  • Harris v Perry [2008] EWCA Civ 907
  • Poppleton v Trustees of Portsmouth Youth Activities Committee [2008] EWCA Civ 646
  • R v Porter [2008] EWCA Crim 1271
  • S Borland, ‘Judge bans brain-damaged boy from suing over bouncy castle accident’ Daily Mail,
  • 1 August 2008
  • L Salkeld, ‘Head wins appeal over falling death of three-year-old playing Batman game on the steps of his school’ Daily Mail, 19 May 2008
  • G Tibbets, ‘People injured in hazardous activities only have themselves to blame, court rules’ Daily Telegraph, 12 June 2008
  • Compensation Act 2006: www.opsi.gov.uk
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