York College Nursery Prosecution – cause for concern?

Preamble, 28 March 2014

This is a corrected version of the article first posted on the 9 February 2014. In that post I erroneously said that the HSE was the prosecuting authority in the York College nursery case. That was wrong, they were not. I apologise for my error, now corrected.  However, the general points raised in the article seem to me to still hold. They therefore remain intact in the piece below.

Since the date of the initial post, there has been an interesting post from Robin Sutcliffe on New Zealand’s approach to compensation and litigation. I urge you to read it. The New Zealand approach is certainly one we should look into to see if it, or some variation of it, might be relevant in the UK. 

The York College case

Some readers will be aware of the York College Nursery case in which, sadly and tragically, a three year old child died as a result of becoming entangled in a rope that was attached to the top of a slide.

Prosecutions were launched: the nursery worker was charged with manslaughter and also, under health and safety legislation, of failing to take ‘reasonable care’.   She was cleared of all charges, which is a relief.

In addition, York College, owners of the nursery, were charged with failing to secure the health and safety of children.  The college was found guilty and will be sentenced on February 2014.  They are liable for unlimited fines. (Update: the fine was £175,000. Judge’s sentencing remarks here.)

I want to tread cautiously in commenting at this stage.   I will not comment at this time  on the findings against  the  college.   Nevertheless some initial thoughts arising from the charge against the nursery worker and another case, can be shared. Continue reading

Holding fast: It’s not the evidence that does it

It is not a minor matter that those of us at the forefront of thinking about, developing, and promoting risk-benefit assessment have been particularly attentive to language, to the meaning of words and the order in which they are placed.  Thus we have taken HAZARD’s hand, twirled it round a bit, and shown its positive, sunny side.  Similarly, we have suggested to CONTROL MEASURES that it should stand in the corner, reflect upon its past errors,  and not rejoin us until it has developed a more sophisticated, nuanced approach to its purposes.  And we have welcomed, and made permanent guest of honour, BENEFITS.  She sits at the head of the table, gets served first and, so to speak, frames the rest of the proceedings.

This is not about risk-benefit assessment

But this piece is not about risk-benefit assessment.  It’s about the importance of saying certain things, of not losing one’s voice, of holding fast to key ideas and values, even when they seem to have no immediate purchase.

The evidential hunt

I make no complaint that once again ‘play’ is on the evidential hunt, apparently to demonstrate to Government just how functional it is in helping to meet the objectives of, for example, improving school performance, enlivening the public realm, contributing to community safety, countering ‘anti-social behaviour’ (in quotes because it is a despicable too wide-ranging term that should be avoided), and preparing children to be economically productive when they enter adulthood.  And no doubt much else.

As I’ve mentioned before, such evidence that is adduced will not persuade Government one way or the other.  Though it may say it has been persuaded, and we may wish to believe it. Continue reading

School playtime: fears, anxieties, and a more optimistic take

Over the years I’ve done a fair amount of work with schools, the focus being on ‘playtime’, a designation that could be found guilty of offending the Trades Description Act, were it applicable to some, perhaps many, schools.

Too often ‘play’ or ‘breaktime’ represents an unwanted lacunae within the school day, a day otherwise devoted to more worthy and directly educational purposes.

Conceptually, too, play or break time presents a difficulty for schools.  Schools are highly ordered, hierarchical institutions, their governing motif the timetable that slices up and controls time and purpose, breaking the day into predictable and repetitive chunks.  Order is all. Continue reading

“We don’t promote risky play” Nor should you.

Thanks to Arthur Batram for finding and sharing this:

“We don’t promote risky play” Nor should you..

Tackling the playground claim culture

Tim’s blog draws useful attention both to Wolverhampton City Council’s approach to risk management and to Helen Tovey’s extremely good article in Nursery World.

And there is more potentially good news – or at least news that travels in the right direction – from the Higher Courts.

A recent case – West Sussex County Council V Pierce [2013] EWCA Civ 1230)involved a school, a water fountain and two brothers ‘larking about’.  As a result  of the larking about one brother sustained a  hockey stick shaped scar of about 2.7 cm; and the school was sued for negligence and damages under the terms of the Occupiers’ Liability Act 1957.

The lower court found in favour of the claim.  However, the case went to appeal and in October 2013 the Court of Appeal with the Master of Rolls sitting, overturned the original judgment.  It is worth quoting from the judgment, though I urge you to read the entire (short) judgment.

The question which has to be addressed therefore is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.

In my view the answer to that question is yes. The water fountain was reasonably safe, or putting it another way, the evidence did not establish that it was not. This court looked at and felt the underside edge of the water fountain. I do not think it can be described as sharp, let alone extremely sharp. It was not possible for example to cut a finger by pressing on it. But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children. Certainly, the edge could have been bevelled, or padded, and had that been done, the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so.

It is of course unfortunate that this little boy hurt his thumb in what might be described a freak accident, but such things happen. This was not a case where the appellant was liable in law for his injury and in my opinion the appeal must therefore be allowed.

The critical points, and they cannot be emphasised enough, are that a school is not under a duty to safeguard children against harm in all circumstances and that law must remain tethered to common sense. The need to exercise ‘common sense’ in making judgments about risks has been the consistent message of many of us, and is underscored in Managing Risk in Play Provision.

There is, coincidentally, another recent case (December 2013) involving a restaurant, a child’s finger, blood and a metal sugar dispenser.  It involved, as you may have by now have guessed, a compensation claim on behalf of the child. The President of the High Court Mr Justice Nicholas Kearns, in his judgment dismissing the claim, remarked that this was ‘another case of compensation culture gobe mad’.  Readers can follow the link to the short article in the Independent.ie if you care to read more detail.

A happy commonsensical new year to you all.

Play services decimated by cuts

Play services decimated by cuts.

This is my first reblog. Hope I’ve done it right. It’s an article by Tim Gill.

The limitations of compensatory provision

It’s that time of year.   More precisely, time of years.  That period which feels, for me at least, set apart from the year we have left;  but also semi-detached from the one we now notionally inhabit.  I have yet to press the ‘Go’ button for full throttle into 2014.

And in such circumstances, the mind idles.  Mine idles thus:

Working for a moment on the assumption there’s no such thing as too much of a good thing, imagine then a world replete with adventure playgrounds, walking buses (I confess I find it hard to include the walking bus as a good thing; it seems to me a thoroughly bad initiative.  However, I’m bound to mention it in the interests of feigned neutrality),  play streets, pop-up playgrounds, playworkers a-swarm in parks and open spaces,  after-school clubs,  privatised ‘public’ shopping malls and whatever other forms of bounded, supervised space or service you may care to include. Continue reading