As schools open their doors to new categories of visitor, they must take an audit of risk and danger on the premises, writes Sarah Freeston.
We are all, by now, familiar with the Government’s approach to the well-being of children and young people, as distilled in the Every Child Matters manifesto.
The manifesto sets out the following objectives: every child should have the support s/he needs to be healthy, stay safe, enjoy and achieve, make a positive contribution and achieve economic well-being.
Schools, often the heart of a local community, are well placed to further the Every Child Matters objectives and make the principles a reality for children and communities by offering extended services.
According to government figures, over 3,000 schools are now providing access to extended services, becoming an extended school, exceeding the Government’s target. Clearly, the willingness to support children is there.
But in circumstances where many schools may be opening up areas of the buildings or grounds at different times than they did before, or allowing new categories of visitor onto school premises by providing these extended services, it is worth revisiting the law on occupier’s liability to ensure that the school takes the steps necessary to reduce the risk of
a negligence claim.
Who is the occupier?
The occupier is the person who has some degree of control over the relevant premises. Two or more people may be the occupier of the same land; the extent of each person’s duty being such as is reasonable in relation to the extent of his control.
For state schools, the occupier will be the relevant local authority. In the case of independent schools, the occupier will be whichever body has control of that school — the proprietor, for example.
DUTY TO VISITORS
The provisions of the Occupier’s Liability Act 1957 regulate the duty that an occupier of premises owes to its visitors in relation to dangers or risks on them.
Section 2(2) of the 1957 Act states that it is an occupier’s duty to ‘take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes of which he is invited … to be there’.
Who is a ‘visitor’?
Establishing who is a visitor is key in circumstances where the duty owed to visitors is automatic and greater than that owed to non-visitors, or trespassers (see below).
Visitor includes all people expressly invited onto school premises as guests — for example pupils, their parents and individuals associated with providing extended services. ‘Visitor’ also includes those invited by implied consent — for example delivery companies or workmen.
- A trespasser, in the usual sense of the word, may in some circumstances be a visitor. For example, a child trespasser, entering land without permission, might be held to be a visitor if s/he was enticed onto the land by some dangerous object particularly alluring to children.
- Equally, a person who originally entered premises as a visitor may become a trespasser by exceeding his or her invitation to be there.
Duty to trespassers
The provisions of the Occupier’s Liability Act 1984 regulate the position in relation to people other than visitors — i.e. trespassers.
The 1984 Act was enacted following an incident where two young boys were injured whilst playing on a railway line. Even though the two children were trespassing on railway land, the court in Herrington v British Railways Board (1972) held that the Railway Board owed a ‘common duty of humanity’ and could be liable if it knew of a danger but failed to prevent trespassers coming onto its land.
The 1984 Act does not impose an automatic duty. The occupier will owe a duty of care to a trespasser in relation to a danger arising from the state of the premises or from things done, or omitted to be done, on the premises if:
a) the occupier knows or has reasonable grounds to believe that the risk or danger exists b) the occupier knows or has reasonable grounds to believe that the trespasser is, or may come into, the vicinity of the danger or risk, and
c) the risk or danger is one against which the occupier may reasonably be expected to offer protection
The duty owed is to take such care as is reasonable in the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned.
What is the extent of the duty?
The nature and extent of the duty owed will depend on all the circumstances of the case, including the nature of the visitor:
- An occupier must be prepared for children to be less careful than adults, and less appreciative of risks associated with certain activities.
- An occupier must take greater care in the case of people with disabilities — for example, a visually impaired person might sustain an injury in a situation where the hazard would be quite clear to others.
The duty owed to a trespasser will not necessarily be the same as the duty owed to a visitor.
Example: ‘Children’s ingenuity’
In Jolley v Sutton London Borough Council (2000), the House of Lords was asked to decide whether or not Sutton London Borough Council was liable when a child sustained an injury while playing under a derelict boat on council land — in the child’s words ‘repairing’ the rotting boat.
The court held that the risk that children would meddle with a derelict and rotting boat on council land and injure themselves was foreseeable and could have been avoided, at little expense, by removing the boat.
Lord Hoffmann reminded occupiers never to underestimate ‘children’s ingenuity in finding unexpected ways of doing mischief to themselves and others’.
Put up signs
An occupier will be complying with its duty by erecting signs, provided these give adequate warning of the hazard involved. Whether or not the duty has been complied with, will depend on the nature of the hazard, the positioning of the signs and the nature of the warning given.
What dangers and risks should the occupier consider?
The dangers or risks with which the occupier should concern itself are those arising from the state of the premises or from things done, or omitted to be done, on them.
The courts have made an important distinction between a danger arising from the state of the premises, for example a dangerously rickety building or an uneven path, and an accident that occurred as a result of a risky activity undertaken, even if certain features of the premises facilitated that activity.
Ordinary landscape features
Case law indicates that ordinary features of landscape, including quasi-natural features, are not going to be a danger arising from the state of the premises. Premises will not be unsafe or dangerous simply because there are obvious risks, such as drowning in a stretch of open water or falling from a height.
Example: a shallow lake
In Tomlinson v Congleton Borough Council (2003), a youth,18, was seriously injured diving into a shallow lake that had been created by flooding a disused quarry.
The council, which ran the park where the lake was located, had erected signs and handed out leaflets warning people of the danger of swimming in the lake. The council knew these warnings were often ignored. The youth dived in and broke his neck. The court said the council was not liable, the danger not resulting from the state of the premises.
In that case, Lord Hobhouse noted that it is not legal policy to require the protection of the foolhardy or reckless at the expense of the enjoyment of the rest of society.
Example: dangerous activity, not dangerous premises
Keown v Coventry Healthcare NHS Trust (2006) is an interesting recent case that confirms that the same principles apply even to children. An 11-year-old boy, trying to impress other children, climbed the underside of a fire escape located on hospital grounds used by members of the public as an access way.
Even though the boy had seen others climbing the fire escape in this way (and was trying to copy them), there was no suggestion that the trust either was, or should have been, aware of this practice.
The boy fell, suffering serious permanent injury, and brought a claim against the trust. The court held that there was no danger arising from the state of the premises; the fire escape was not inherently defective or dangerous. The injury resulted from the dangerous activity that the boy had decided to undertake.
Example: dangerous premises
Applying these principles, take the scenario of teenagers entering onto school property after hours, perhaps gaining access through a hole in the fence. If that hole has jagged edges, and one of the teenagers injures herself crawling through, the occupier is probably liable under the legislation.
This will be particularly the case if the occupier knew about the hole and the fact it was being used to gain access. Added to that, in all likelihood, the hole would be relatively easy to repair.
Example: risky activity
By way of contrast, take a different scenario involving teenagers and a swimming pool. Signs have been erected both in the immediate vicinity of the pool and in the changing rooms warning that pupils are not allowed in the pool unless a member of staff is present. The teenagers, who attend the school, have been advised frequently in assemblies of the dangers inherent in playing near the pool.
It is winter and the pool has been emptied so that it can be cleaned. The teenagers break into the pool enclosure and one amongst them jumps into the empty pool and suffers an injury. In this case, the occupier is probably not liable. The danger arose not from the state of the premises but rather from the risky activity undertaken there.
ACTION YOU SHOULD TAKE
It seems that the courts are keen to avoid creating a nanny state, or encourage the furtherance of the compensation culture.
But where extended schools will be opening their doors to different categories of visitor to undertake different types of activities, an audit of school premises to ascertain whether or not there are additional risks or dangers that should either carry prominent and clear warning signs, or be remedied, is advised.
Sarah is an assistant solicitor at Browne Jacobson.