Bernard Spiegal

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.
In respect of the nursery school teacher, the fact that she was prosecuted at all seems to me, once again, to raise questions about how judgments come to be made in cases such as this.  I say ‘once again’ because, although this was not an HSE prosecution, one wonders if similar thought patterns were at play in this case, as were informing HSE’s decision to launch a prosecution under Section 3 (1) of the Health and Safety at Work Act 1974  against the headmaster of Hillgrove School, Bangor, in North Wales.  In that case, a three year old died after falling from a step in the playground.  That fall precipitated a series of events, culminating in the child becoming fatally ill from MRSA, acquired in hospital.

The Headmaster was found guilty by a jury at Crown Court.  That verdict went to appeal where it was overturned.

Flawed judgments?

It must be of  concern for all those working with children that prosecutions are launched against individuals that cannot ultimately be sustained.  The not guilty findings are of course welcome and a vindication of those charged.  But, quite apart from the devastation wreaked on the lives of those accused, and the pain parents are forced to endure during the trial and the lead-up to it, there are the wider, potentially chilling negative consequences these cases could have on those working with children.

Notwithstanding the eventual positive judgment of the courts in the two cases cited above, those working with children, on seeing that a prosecution was launched against individuals, are likely to feel ‘There but for the grace of god go I’.   And that feeling is likely to induce more anxiety around risk issues, creating the impetus for judgments to be based on the over-zealous application of the precautionary principle and, whether acknowledged or not, to allow secondary risk management considerations – ‘Will I be taken to court if…? ‘ – to distort judgments about the balance to be struck between risk and benefit.

Any risk assessment, and most assuredly risk-benefit assessment, is based on judgment. By definition, judgment offers no guarantee of certainty.  Further, it is an inescapable feature of any risk assessment process that a risk deemed acceptable never escapes from the possibility that an unacceptable outcome might in fact occur.  And if it so does, it does not follow that the initial judgment was mistaken.  We know this intuitively, in a commonsense sort of way.  That is why we allow children of a certain age/level of maturity to cross roads unaccompanied, despite the fact that there is the very real possibility of injury or death from traffic.  Society, and almost all parents, recognise children need to cross roads unaccompanied.  The attendant risks, very real risks, all too frequently realised, are deemed, within the terms of the discussion here, acceptable, uncomfortable though it may be to say this out loud.

Questions need to be asked: is there a tendency to prosecute  simply on the basis of  a negative outcome?   Is there a culture, a belief system, perhaps unacknowledged, perhaps barely conscious, that holds that after incidents such as the nursery case,  someone must be found to be culpable?  That there is a zero-sum game in play, such that it cannot be allowed that a tragic incident fails to yield up someone to blame?

A general question also emerges: do authorities that have the power to prosecute have the understandings, value-base and sensibilities that are the necessary prerequisites to making the sort of fine-grained, complex judgments that Section 3 of the 1974 Act require[1]?  A nursery, a school, a park, an historical monument are not factories -Section 3 is concerned with visitors to and users of places and sites, not the employees of an undertaking where different considerations and concerns rightly apply.

It seems to me that a baseline requirement for decision making in respect of Section 3 is a practically-based understanding  about what real time situations entail, certainly ones involving numbers of children.  There should, for example, be an understanding that, in the context of play and playgrounds (and much else), it is neither desirable nor possible to supervise all children all of the time.

In the case of Hillgrove School mentioned above, the appeal judgment made the following point:

‘ In our view the evidence in the instant case was all one way.  There was no evidence on which a jury properly directed could reasonably conclude that this child was exposed to risk by the conduct of this school.  All the evidence suggested that there was no risk, other than the risk that every time a child was left other than closely supervised, that that child might go unsupervised down a flight of stairs.  No one sensibly suggested that in every school or public building to which young children have access, a child must be “constantly supervised” (to use the words of the judge) when the child chooses to go downstairs.’ 

There needs also to be an understanding that no formal, paper-based risk assessment process can comprehensively identify and assess  the range of contingent situations that may arise.  And even where a risk assessment does identify a potential unacceptable level of risk in a feature or of an activity, it is not always the case that in practice, at a particular moment, it can be acted upon in the way that mitigates the risk.  There may be countervailing pressures to deal with another matter or incident that, at the time, took precedence.  It is all too easy to come to post hoc judgments in the light of facts and considerations that  might now seem obvious, but  were not prior to their occurrence.  The temptation  to rely on the predictive certainty of hindsight is to be avoided.

It therefore needs to be said, with  regret, that notwithstanding the warm, supportive and welcome words of the Chair of HSE, Judith Hackitt, about risk and play, the force of those words will be at best diluted if authorities launch prosecutions that appear ill-judged.   And although the prosecutions in the York College nursery case was not undertaken by the HSE, it is unlikely that front line workers  and their organisations will either notice or distinguish between prosecuting authorities. The fact of prosecution will be enough to generate anxiety and reinforce risk averseness and defensive practice.  For it is the decisions of authorities in general that will be looked to for ‘guidance’ by those working with, or responsible for, children.   And, currently, the suspicion has to be that those decisions will have a negative impact on those responsible for making judgments about risk in nurseries, school and playgrounds.

Postscript, 28 March 2014

As indicated at the head of this article, I have corrected some errors of fact in the original version of this post, whilst maintaining the general points made.

Since that initial post, examples of New Zealand’s approach to risk, litigation and compensation has been most helpfully reported by Robin Sutcliffe in his post at grumpysutcliffe. I urge you to read it for, at the very least, it suggests that there are avenues that should be explored for possible application in the UK.