Warning signs

Schools and colleges owe a duty of care to pupils and the wider public and could be held liable where damage is caused to a person or property by their actions or failures. Richard Bird explains.

The cases of legionella that occurred in Glasgow were both a reminder of a practical task – make sure that caretakers run the showers regularly during the summer holidays – and a reminder of the law of negligence.

A person – whether what the law calls a 'natural person' or a legal person, such as a school or college – owes duties of care to employees, its pupils and to the wider public and it is liable where it causes damage to person or property by its actions or failures.

This can extend even to trespassers if there are dangers that the school/college fails to point out. It is no longer lawful to set hazards in a trespasser's way, even if you put up a notice saying, 'Mantraps and spring guns set here'. It is also the case that if you fail to indicate that a roof is weak you may be held liable if a trespasser falls through it.

Therefore, it is worthwhile considering what might happen to those young people who wander on to the school fields to kick a football about. What would happen if the football went off the pitch on to a roof or elsewhere? Would there be unseen dangers if the young people involved went to look for it? Whether the school or college is held liable in the end will depend on the judge.

Rising demands

Once the hazard is identified, the risk must be mitigated. Warning notices and procedures may be enough to do that where trespassers are concerned but when a school or college has lawful control over young people the standard of care has to be higher. This has implications for the number of supervisors at breaks and lunchtimes, for how seriously they take their responsibilities, and how effectively they fulfil them.

Where incurring a risk is the whole purpose of the activity, the demands rise. For example, if young people do adventurous or hazardous activities, the school or college needs to take proportionate care.

Judges have been scathing about the Compensation Act that enjoins courts to consider what the effect might be on worthwhile activities if they find against bodies such as a school or college. They claim that the common law already covered this. However, since the act was passed there has been a stream of cases where schools have been cleared of negligence.

Well-meant intentions

This has applied, for example, to incidents that occur during adventure activities. In one case, a school refused permission for the person responsible for training their team for the Ten Tors event on Dartmoor to go on a mountain leadership course. The judge carefully examined the evidence of the training regime the leader set up for the young people and concluded that their training was adequate. A factor in this decision may have been that the students accurately found their way to a key checkpoint that supervising staff failed to locate.

An additional, and potentially important, legal point came up in this case. The teacher in charge had instructed the group by mobile phone to go around the headwaters of a stream in spate. However, a well-meaning adult the young people met suggested that they could cross the stream safely where he had crossed earlier. It was in crossing the stream that one girl drowned.

The judge made it clear that even if he had not decided that the party had been trained properly and advised responsibly, the legal position was that the chain of causation between the teacher's training of the pupils and the disaster was broken. But for that well-intentioned advice, the girl would have lived.

At times in negligence cases, intervention would have meant safety; for example, where another group warns of hazardous conditions and this is ignored by an over-confident leader. Here, the intervention led straight to the disaster.

The pupil leader was not to blame. Although she ignored the instructions from the teacher, she believed that the person who advised them was a knowledgeable adult; indeed, she assumed that he was the leader of one of the other groups training on Dartmoor at the time. Given that he had crossed the brook himself earlier, she could not be faulted.

Whenever an accident or incident occurs, the test is whether the accident would have happened but for a failure to foresee a problem, to put a remedy in place, or to make sure that a procedure in place was actually followed. Any investigation that the school holds should focus on that. But, as always, prevention is better than cure.

• Richard Bird is ASCL's legal specialist
  

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