A headteacher was fined £12,500 after a boy died at school. What does this mean for educators? Hazel Padmore investigates

**This judgement has now been reversed by the Court of Appeal. Read an article published in October 2008 on the new legal implications of the case.**

The conviction in September 2007 of a head teacher in Wales for a breach of health and safety law after an accident at his school has caused concern over the extent to which liability for such accidents can be be attributable to local authorities, governors and head teachers under  health and safety law.

Go straight to an update on the Corporate Manslaughter and Corporate Homicide Act 2007 or read on for the case.

James Porter, owner of a private school in Bangor, Gwynedd, was fined £12,500 and ordered to pay £7,500 costs after one of his pupils fell on steps in the playground and later died. In this article, we will look at the Porter case in more detail, asking what the implications are for educators, as well as updating you on the Corporate Manslaughter and Corporate Homicide Bill 2007, on liability of organisations for fatal accidents.

THE ACCIDENT

The three-year-old pupil was playing on a flight of 13 brick steps between the two playgrounds used by him and other children at the school during lunch and break periods. He jumped from the fourth step, whilst pretending to be Batman, and tripped on the bottom step, falling face-down onto the ground. The boy sustained swelling to the brain and fell into a coma. He later died in hospital after contracting a form of the antibiotic-resistant ‘superbug’ MRSA.

THE LAW

Mr Porter, head teacher and owner of the school was prosecuted by the Health and Safety Executive for an offence contrary to s.3(1) of the Health and Safety at Work Act 1974.

Section 3(1): It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

The question for the jury was whether Mr Porter had failed in his duty to ensure, so far as reasonably practicable, that the kindergarten pupils at the school were not exposed to risk from falling on the flight of steps.

THE PROSECUTION CASE

The Health and Safety Executive said that, though the steps themselves were not dangerous, the young boy had been allowed unsupervised access to them. There was no physical barrier limiting or preventing younger children from reaching the steps. After the accident the school had put up a gate, preventing the younger children from gaining unsupervised access to the steps.

Supervision

The Health and Safety Executive also relied upon levels of supervision at the time of the accident to prove that the head teacher had failed to discharge his legal obligations to protect the health and safety of the younger children. The court heard that at the time of the accident there were 59 pupils playing in the two playgrounds. These pupils were being supervised by only one member of staff. Although the staff member had positioned herself so that she could see both of the playgrounds, she was not able to see the steps where the accident happened. The head teacher was questioned about his awareness of department of health guidelines that nursery-age children should be supervised at a ratio of 26-1. He admitted that he was not familiar with this guidance.


THE DEFENCE CASE

The head teacher denied the offence, arguing that he had done all that was reasonably practicable to ensure that the children were not exposed to a health and safety risk by falling on the flight of steps. The defence brought expert evidence to show that all reasonably practicable measures had been taken.

The arguments

  • To protect the kindergarten children from risks associated with falling on the steps, a teacher had told kindergarten children that the steps were out of bounds.
  • Mr Porter said that he had considered supervision at the school to be adequate, given the ‘ethos of the school’ and the self-disciplined nature of the pupils.
  • Mr Porter’s defence barrister argued that children should not be ‘wrapped up in cotton wool’, and that the accident was a ‘one-in-a-million tragedy’.
  • The defence barrister also pointed out the exemplary record of health and safety at the school before the accident.

So why did the jury decide to convict the head teacher — and what does this mean in terms of the scope of liability for health and safety within schools?

‘REASONABLY PRACTICABLE’

As argued in this case, it is a defence to show that an employer did all that was reasonably practicable to ensure that a person was not exposed to a health and safety risk. Assessing whether a defendant met the required standard calls for consideration of what he did, and what he could have done, to prevent the accident from happening. The stronger the evidence of measures that could have been taken to eliminate or reduce the risk (but were not taken), the more likely a jury is to convict. In the Porter case, the defence called expert evidence from a health and safety consultant, who said that the head had done all that was reasonably practicable to protect the younger children from falling on the steps. But contrary to this, went the fact that a gate had been installed after the accident — suggesting that this is what should have been done in the first place. It is likely that the jury took this into account when deciding to convict Mr Porter.

 
Foreseeability

In deciding whether the defendant took all reasonably practicable measures, the jury will consider what type of accident was reasonably foreseeable. Where the accident was entirely unforeseeable, it is unlikely that criminal liability will result, so long as the relevant party (whether it be the local authority, board of governors or head teacher) can show that s/he took all reasonable steps to ensure that the child was not exposed to the risk. In this case, the jury would have asked whether it was reasonably foreseeable that very young children would play on a set of steps when they had been given specific instructions that the area was out of bounds.


RISK ASSESSMENTS

Risk assessments are a fundamental part of a school’s health and safety measures and are required by health and safety legislation. Risk assessments must be suitable and sufficient, and must identify risks to a person’s health and safety, whether it be an employee or other person connected with the premises. The importance of risk assessments was a further feature of the Porter case. After the accident, the Health and Safety Executive served an improvement notice on the school, requiring risk assessment and the implementation of measures to prevent falls from steps and walls in the playgrounds. During the trial Mr Porter was cross-examined about the risk assessments his school had carried out. Mr Porter admitted that, although there had been risk assessments, he had not referred to guidance provided by the Health and Safety Executive when carrying them out.

PRACTICAL IMPLICATIONS

Mr Porter has appealed against his conviction. If the case does go to appeal, the Court of Appeal will analyse schools’ liability under the health and safety law. But even at this stage, the prosecution of Mr Porter raises questions for local authorities, governors and head teachers — particularly in respect of their handling of play and lunch-time and break-time activities.

Restricting play:

To what extent should schools be restricting a child’s ‘play’ so as to avoid potential prosecution were an accident to occur? The Health and Safety Executive tried to deal with this issue after the conclusion of the case. It recognised that play was ‘absolutely essential’ to children’s development, but emphasised the need for balance between risks and benefits. The HSE warned that very small children must not be left ‘effectively unsupervised’.


Accident liability:

Schools have expressed concern over the extent of their liability for accidents. The Health and Safety Executive has offered heads reassurance, confirming that the prosecution of Mr Porter should not be taken as a signal that they will face enforcement action after ‘everyday incidents which often happen to children’.

Importance of supervision:

This case does, however, highlight the importance of ensuring that supervision levels are adequate at all times throughout the school day — particularly in schools with children of nursery age, where the recommended ratios are lower.

Risk assessment:

The case serves as a reminder to schools that they must carry out detailed risk assessment of all potential hazards — both those present on school grounds, and those that may arise during activities on and off the premises. Once the hazards have been identified, the school must make sure that it has taken all reasonable steps to eliminate or significantly reduce associated risks. 

INCREASED ACCOUNTABILITY

Are schools increasingly accountable for accidents that happen to their pupils? Before appeal, we can draw lessons from this case on its facts only (not general legal principles). So, when considering how Porter applies to them, schools should bear in mind the age and vulnerability of the victim in the case, and the evidence on supervision and measures that had been, and could have been, taken to prevent or limit access to the steps. This prosecution is illustrative of a shift in health and safety and criminal law towards increased accountability for those in positions of authority in the public and private sector. But head teachers will not become routinely criminally liable for accidents involving pupils if they take all reasonable steps to protect them from identifiable and foreseeable risks.

Hazel Padmore is a solicitor at Browne Jacobson FIND OUT MORE

HSE advice to schools after the Porter case
Corporate Manslaughter and Corporate Homicide Act 2007

CORPORATE MANSLAUGHTER AND HOMICIDE An article dealing with health and safety would not be complete without an update on the Corporate Manslaughter and Corporate Homicide Act 2007 and consideration of its own specific implications. All organisations (as defined in the new Act) will be the subject of a new statutory offence of corporate manslaughter from April 2008. Whilst the new law focuses on organisations rather then individuals it will in theory be applicable to schools.


Negligence in activity rather than individual

Prosecutors will no longer have to struggle trying to prove that an individual who could properly be identified as the directing mind of an organisation is guilty of gross negligence. Instead, liability for the new offence depends on a finding of gross negligence in the way in which the activities of the organisation are run. The elements of the new offence are:

  • An organisation must owe a ‘relevant duty of care’ to the victim. This includes duties owed to employees, as an occupier of premises, in the supply of goods or services or in the use or keeping by the organisation of any plant, vehicle or other things.
  • The organisation must be in breach of that duty as a result of the way in which the activities of the organisation are managed or organised — the management failure. The Act stipulates that a substantial element of that breach must lie in the way in which senior management ran or organised its activities.
  • The failure must have caused the death.
  • The failure must be gross in that it falls far below what could reasonably be expected. When considering this, the jury may consider the extent to which the organisation was in breach of its obligations under health and safety law.

School trips Education professionals will appreciate that organisation of school trips will be subject to the new corporate manslaughter and homicide legislation.

Sanctions

The sanctions after conviction are:

  • an unlimited fine
  • a remedial order — requiring the organisation to remedy the deficiencies in health and safety management that lay behind the breach
  • publicity order — requiring the organisation to publicise details of the offence

Practical issues There are a number of practical issues to consider:

  • There is no increased personal criminal liability but the existing law allows for such liability in any event under the law relating to gross negligence manslaughter, or under the health and safety legislation — that is, Section 37 or 7 of the Health and Safety at Work Act 1974.
  • In the event of prosecution, the evidence given in the Crown Court must in part focus on the way in which senior management acted.
  • Where management of an activity includes reasonable safeguards — in particular compliance with health and safety legislation and guidance —  and death nonetheless occurs, should be no question of prosecution and conviction under the new law.
  • It is not expected that more than 10 to 15 prosecutions will be brought in any year.
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