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.
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Bernard Spiegal 