The emphasis of school trips is now on risk-aversion, with priority being placed on experience and adventure. But schools should remember that the threat of litigation has not diminished, warns Susie Roome
The new school year has brought with it a flurry of press reports about the benefits to children of play time and adventure. We are told that children benefit from outside play, and that wrapping them in cotton wool is creating a risk-averse generation that struggles to deal with challenges.
Nowhere is this more relevant for education professionals than in school trips, where outings are dropping because of overly bureaucratic health and safety rules, and a fear of prosecution if something goes wrong.
But the new emphasis on risk underlines not so much a change in the law, as a change in Government approach — the risk of litigation has not diminished. This article looks at:
- how Staying Safe will change the emphasis at school
- the law in relation to trips, negligence and risk assessment
The government’s approach to school trips
The background to this debate on risk is, ironically, the recent Government emphasis on safety. The Staying Safe Action Plan sets out its three-year strategy for improving the safety of children. But what about the fun of childhood — the adventures, exploring and learning?
The Government says that the plan represents a change in policy, in that it identifies the need to strike a balance between protecting our children from harm and allowing them the freedom to develop, gain independence and enjoy their childhood.
This was clearly the message that the Government wanted to convey as it launched Staying Safe, focusing the attention of the press on its new guidance to support and encourage school trips.
So risk is back in fashion. But has there been a change in the law? The short answer is — no. Staying Safe has launched a number of initiatives, aimed at cutting the red tape surrounding school trips.
But the law upon which this guidance is based is well established, so the risk to the education professional of litigation or criminal prosecution has not, in fact, diminished.
A risky business
Certainly there are legal risks associated with school trips. In 2003, the National Association of School Masters and Union of Women Teachers advised its members not to go on school trips because of the risk of being sued by ‘increasingly litigious’ parents.
It warned that there had been 11 deaths and 700 ‘near misses’ on school trips over the preceding three years.
But these figures need to be put in perspective. Most school visits take place without incident, and it is clear that teachers are already demonstrating a high level of safety awareness.
Parents believe that children are more at risk now than they were 25 years ago, and certainly more at risk in public spaces than when at home. But the opposite is true. Research analysed by Play England indicates that three times as many children are taken to hospital each year from falling out of bed, than from falling out of trees.
Accidents on school trips are rare, but unfortunately they sometimes have tragic results, which is newsworthy. Current figures show that the average annual death rate on school visits is only three deaths, out of seven to 10 million days of school visits. This compares with 200 annual deaths of under-18’s in the home, and 400 deaths of under-18’s on the road.
What has changed?
So if the law has not changed, what has? Ed Balls, Secretary of State for Children, Schools and Families, said: ‘We should not let a fear of a compensation culture prevent pupils learning outside the classroom.
‘On school trips … we need to help parents and teachers strike the right balance between protecting our children and allowing them the freedom to develop and enjoy their childhood’.
But what assistance is out there to help these professionals strike that all-important balance?
Guidance on school trips
At the launch of Staying Safe in February 2008, the Government promised a new ‘Out and About’ package, to include:
- guidance on taking pupils outside the classroom
- a framework for teachers’ continuing professional development, to ensure that they have the skills to take pupils on trips safely
This guidance was due to be rolled out in May 2008 but has been delayed. At the time of writing, no revised date has been put forward.
What to rely on now
Until the Out and About guidance is launched, schools can still rely upon a wealth of information when planning trips:
DfES Good Practice Guide
A good starting point is the DfES 1998 Good Practice Guide ‘Health and Safety of Pupils on Educational Visits’. This comprehensive guidance will apparently be revised by Out and About, but is at present the best assistance for the education professional lost in the bureaucracy of red tape.
Supplementary guidance also exists:
- Health and Safety Responsibilities and Powers (2001)
- Standards for LEAs and Overseeing Educational Visits (2002)
- Standards for Adventure and Handbooks Group Leaders (2002)
- Group Safety at Water Margins (2002)
These are available for download at www.teachernet.gov.uk
This guidance promotes best practice. It does not have statutory effect. But case law from the civil and criminal jurisdictions suggests that, when considering evidence of either civil or criminal negligence, the courts will make reference to this relevant advisory material as a starting point in their assessment.
Education professionals owe what lawyers call a ‘common law duty of care’ to the children in their charge. This duty is to act as any reasonably prudent parent would do, in the same circumstances.
So how do you assess reasonable competence, and show proof of this? The simple answer is — you assess the risks carefully, and you document your assessment.
An area of law that significantly affects school trips is health and safety. Risk assessments are fundamental in this legislation.
Under the Health and Safety at Work Act 1974, employers are responsible for the health and safety of their employees. In the context of schools, an employer could be the local education authority, a governing body, an owner or trustee of a school. An employee could be a teacher or other education professional.
Although the employer is technically responsible for health and safety, the decisions and responsibilities relating to a school visit are usually delegated to the head teacher.
In turn, the employees, or education professionals, must also take reasonable care of their own and others’ safety. These duties to take reasonable care apply to all school visits and extend to anyone who may be affected by these activities such as pupils, parents, and visitors.
As an indicator of reasonable care, the Management of Health and Safety at Work Regulations 1992 requires that suitable and sufficient risk assessments be carried out, to be able to show that as a result, all ‘reasonable precautions’ were taken in terms of supervision, protection and training before and during a trip.
This may sound technical but in fact it is largely common sense. The complexity of the assessment will increase with the risks involved in the trip — but the key is in the planning, and the vast majority of education professionals are sensible enough to identify the risks that apply to a school trip, and tackle them.
In Staying Safe, the Government has also promised to work with the Health and Safety Executive and other partners to reinforce the message to schools that risk assessments must be proportionate, in order to minimise risk, without denying children the opportunity to experience the benefits of out-of-classroom learning.
How they will do this is not clear, but if the Government holds true to this promise we may see a further change in emphasis, away from the fear of red tape and litigation and towards the benefits of new experience and adventure.
The Government has also launched Quality Badges, a further initiative aimed at reducing the bureaucratic burden of risk assessment on teachers.
The award of these badges to venues and organisations that hold school or youth group visits — such as museums, historic houses, field centres and farms — aims to help education professionals identify locations for visits that provide high quality learning outside the classroom, and that are managing their health and safety effectively.
The continuing duty to assess risks
The requirement for a risk assessment continues throughout a trip, not simply in the preparation. This was highlighted in the important case of Simon Chittock v Woodbridge School (2002).
The ski accident
Simon was one of three sixth form students who joined a skiing party of younger boys. Simon had some skiing experience, and his parents had agreed that he could ski unsupervised but under the general supervision of the teachers.
On the trip, three incidents occurred concerning Simon’s behaviour, which raised questions as to whether he could be trusted. He was given a reprimand and the group leader threatened to take away his ski pass, but did not ultimately do so.
The day after the last incident, Simon was on a skiing run and travelled too fast, ignoring warning signs. He fell and was seriously disabled as a result.
The school and the group leader were sued. The court held that the group leader had a duty to take reasonable care for the safety of all the students. The decision to let the three older boys ski alone depended on their demonstrating mature and responsible behaviour.
Reasonable range of responses
In this context, the court said, the reprimand and the threat to remove the ski pass had been within a reasonable range of responses. The group leader was entitled to accept assurances from the older student that he would follow the rules.
In practical terms, the group leader had assessed the risk in a reasonable manner. The court concluded that the accident could have happened at any time.
Compensation Act mutes negligence threat
It is also important to note that the threat of negligence claims for civil liability has been muted by the introduction of Section 1 of the Compensation Act 2006.
This requires the court to have regard, amongst other things, to the wider ‘social value’ of the activity being undertaken that gave rise to the injury.
In other words, when determining whether the defendant should have taken particular steps to protect against risks, the court will consider whether the activity was a desirable activity and whether those particular steps would discourage a person from undertaking that activity in the future.
In the current climate, school trips, adventure and outdoor play are clearly regarded as desirable activities and the courts should therefore consider the benefits of school trips to children when making their assessment of what is, or is not, reasonable.
Most of the media coverage relating to school trips focuses on criminal prosecutions of individuals brought under the Health and Safety at Work Act 1974. Against this background, individuals such Paul Ellis — the teacher involved in Glen Rhydding Beck tragedy, have been successfully prosecuted for manslaughter by gross negligence.
The Glen Rhydding Beck case In 2002, Max Palmer a 10-year-old Lancashire school boy, died whilst swimming in a plunge pool during an activity weekend. The weather was poor. The stream was in spate. The water was very cold. The court found that there were serious deficiencies in planning and leading the activity.
The judge said:?‘Having watched the video film taken of the beck at the time … it struck me as unbelievably foolhardy and negligent that anyone would venture into that beck when it was in the state of full spate. And that any teacher or leader of an adventure group would allow any child to enter that beck or to plunge from the rocks above into the pool below.’
The teacher in charge of the trip, Paul Ellis, pleaded guilty to manslaughter and to a health and safety offence of failing to take effective measures to prevent physical injury.
This case highlights the fact that planning and risk assessments are essential. There may have been a different outcome had reasonable care been taken when assessing whether this activity was in fact safe.
The future for school trips
By putting risk and adventure back on the agenda, the Government has heralded a return to school trips and outdoor play for the country’s children. Most education professionals will welcome this initiative, recognising the important benefits to our children of exploration and learning outside the classroom.
Encouraging school trips to help pupils understand their subjects better and develop their self-confidence, means that education professionals can play an important role in developing a generation of pupils who are independent and reach their full potential.
But these professionals must be given help in their promotion of school trips — to reduce the fear of litigation, to cut through the red tape and bureaucracy and to understand their true legal responsibilities.
The Government has promised this assistance — let’s hope that they deliver. Only then will professionals and pupils alike be free to enjoy the undoubted benefits of a day out.
Susie Roome is an assistant solicitor at Browne Jacobson
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