Amid increasing and disproportionate publicity about injuries to children on school trips, as well as teachers’ concerns about liability in the case of an accident, Sarah Erwin-Jones explains the relevant legislation and signposts guidance
As a teacher, do I have personal responsibility for events that take place on school trips and visits?
Some teaching unions have, for some time now, been advising their members to no longer take the legal risk of taking children on school trips. Certainly, there are legal risks associated with school trips, but these need to be kept in proportion. In terms of civil liability, teachers have obligations referred to by lawyers as a common law duty of care. This makes it sound more technical than it is. It is not an extension of your existing duties to those who teach, simply another facet of it. All teachers owe a duty of care to exercise their professional responsibilities within the school environment or as part of their extended duties. The law simply expects reasonable competence. It does not demand perfection. A duty of care will only be breached if, in the face of foreseeable harm, they have acted in a way that no other reasonably responsible teacher would have acted.
The threat of negligence claims has been muted by the introduction of section 1 of the Compensation Act 2006, which requires the Court to have regard, among other things, to the wider ‘social value‘ of the activity being undertaken that gave rise to the injury. In other words, the Court will (in determining whether the Defendant should have taken particular steps to protect against risk) consider whether the activity was a ‘desirable activity‘ and whether those particular steps would discourage a person from undertaking that activity in the future.
I understand that risk assessments are an important part of organising school trips?
Yes, another area of the law that impacts on school trips is health and safety. Sections 2-4 and 7 of the Health and Safety at Work Act 1974, coupled with the Management of Health and Safety at Work Regulations 1999, require employers to carry out suitable and sufficient risk assessments to be able to show that as a result, they took all ’reasonable precautions‘ in terms of supervision, protection and training before and during the trip.
What about criminal liability?
Most of the media coverage relating to school trips focuses on criminal prosecutions of individuals brought under the Health and Safety at Work Act.
Against this background, individuals such as Paul Ellis, a teacher involved in the Glenridding Beck tragedy, have been successfully prosecuted for manslaughter by gross negligence. More recently, the Corporate Homicide Bill has been announced, creating the offence of corporate homicide with the intention of improving the prospects of successful criminal prosecution of corporate bodies following fatal accidents. The legislation proposes a new test for corporate liability. focusing on senior management failure, and proposes fines of up to 10% of an organisation’s turnover where liability is established.
Is there any guidance for schools available in relation to planning school trips?
Yes, there is plenty. A good starting point is the DfES 1999 Good Practice Guide ’Health and Safety of Pupils on Educational Visits‘. Supplementary guidance, Health and Safety: Responsibilities and Powers was sent to schools and LEAs in December 2001. Most recently, further specific guidance in the area of Standards for LEAs and Overseeing Educational Visits, Standards for Adventure and A Handbook for Group Leaders has been provided. All these are available on www.teachernet.gov.uk. Additionally there is a British Standards document 8848 ‘Specification for the Provision of Adventurous Activities, Expeditions, Visits and Fieldwork outside the UK‘ that will be relevant in respect of some school trips. All these documents promote best practice. They do not have statutory effect, but case law in both the civil and criminal jurisdiction suggests that Courts will make reference to relevant advisory materials as prima facia evidence of either civil or criminal negligence.
Should schools consider ending school trips?
Neither the duty of the schools under the Education Act 1996 - to offer appropriate and efficient education to include consideration of pupils’ spiritual, moral, mental and physical development – nor the national curriculum, require children to take part in school trips. However, the benefits to pupils can be very significant, assisting them in developing life and social skills and building on their capacity to manage risks for themselves. After all, adult life cannot completely exclude all risks and it would surely be wrong to allow children to believe that all risks can be excluded, or fail to give them the tools to manage those risks. Furthermore, the DCSF has as its stated aim to make this country ‘the best place in the world for children and young people to grow up’. School trips and excursions are therefore part of the relevant package of experiences for children that contribute to the achievement of that aim. Appropriately, then, schools are to be encouraged to report on learning outside the classroom provision through their Oftsted self-evaluation forms.
This e-bulletin issue was first published in June 2008
About the author: Sarah Erwin-Jones has been a partner with Browne Jacobson since 2003, and specialises in social services, the care sector and legal costs along with education.