Health and safety laws are not as unrealistic as they are often made out to be, says Richard Bird.

Health and safety: tread carefully

Health and safety are always good for a laugh or indignation. It was the latter when investigations revealed the scale of pay-outs by local authorities (LAs) for injuries to young people. In one authority, they totalled £800,000 over five years. They included pay-outs for assaults by other pupils and these did not need to leave lasting physical damage: ‘Trauma’ was sufficient to get a settlement of £1,000.

The logic for the pay-outs, however, is the same as for the £5,000 paid out to a police constable for a cut thumb incurred while dealing with a cannabis factory without protective gloves. An insurer thought it cheaper to settle than fight.

Where a claim is very large it is different. A school janitor in Galashiels in Selkirkshire in Scotland claimed £50,000 for a very unpleasant fall on a staircase. The stairs had been smeared with Vaseline by ‘playful sixth-formers’ as part of their traditional leaving celebrations. An alert member of staff had spotted that the banisters were smeared and the janitor was asked to clean them before someone was hurt. Unfortunately, the member of staff had not been alert enough. There was nothing wrong with the size of the claim – the injuries were serious. The issue was whether there was a claim at all.

The judge’s comments are a very good illustration of the fundamental legal principles that apply in these cases; and in this area Scottish law does not differ from the law of the rest of Britain.

The judge recognised that the school could foresee that some kind of prank would be played by the sixth-formers but the chances of foreseeing the precise nature of the prank would be very low indeed. Even if the particular prank had been foreseen, and intensive supervision had been imposed on that day, it may just have transferred the prank to another day.

Sense of responsibility

But the key point was the one that is embedded in the Compensation Act 2006. This states that a judge should consider, in finding negligence, whether by doing so he or she would make it likely that a worthwhile activity would not take place. This test is usually applied in the context of outdoor pursuits and adventure holidays but in this case the judge saw it in this rather different aspect.

“It seems that the only way to be sure that nothing untoward happened would have been to closely monitor (sic) each sixth-former all day.”

So why wasn’t the school found negligent for failing to do so?

Because “such a move would have been inconsistent with the sense of responsibility the school was attempting to engender in the pupils”.

This is very much in line with the judgement in an English case concerning the rape of several girls on an adventure trip. The judge in that case laid significant emphasis on the intelligence and maturity of the girls and their role in planning the trip. This was not to blame the girls for what happened; the point was that the trip was about trust and responsibility and constant patrolling would have undermined that.

As the judge in the Galashiels’ case put it, the supervision that would be required “would have consumed staff and time in a wholly disproportionate manner”.

The fact that it may also not have been effective weighed with the judge, but it was not the essential reason for his finding. The essential point was that the school would have had to impose a regime that would have wholly negated the idea of treating sixth-formers as young adults and treated them instead like irresponsible, if persistent and ingenious, children.

This was, he judged, too high a price to pay for the safety of staff.

Careless practices

Where negligence is found in workplace health and safety cases it is usually as a result of working practices that are chronically careless; there has been little training or there has been no attempt to do even the simplest risk assessment. The culture in the firm has been one of ‘Press on regardless’ or ‘It’ll be all right on the night’. This was not the case in the Galashiels school.

Schools are for education and although there is a primary duty to keep children safe, there are circumstances when education comes first, as long as reasonable precautions are taken. Because schools are about education, there may also be good reasons for things that seem, at first sight, to be slightly absurd.

The Health and Safety Executive (HSE) long ago attempted to shut down the untrue story that children must wear goggles to play conkers. But they have endorsed a recommendation that children taking swimming lessons should not wear goggles.

The HSE agree that there is nothing intrinsically dangerous in wearing goggles for a swimming lesson.

However, for most children, the purpose of learning swimming is to help them to survive if they fall into water. No one issues them with goggles when they go out to play alongside a canal. Being used to water in their faces and eyes may improve their chances of survival.

So ‘no goggles’ does make sense. But if a school allowed them, that would not be negligent either.

• Richard Bird is ASCL's Legal Specialist

_{This article contains general guidance on the law and should not be relied upon in the case of specific legal problems. In the case of a specific legal problem, recipients are advised to seek advice from a qualified legal professional.}

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