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Your school must be safe “so far as is reasonably practicable” This simply means that you cannot work miracles and that safety has to be judged against what is achievable. However, lack of money is not an adequate excuse if a Risk Assessment shows that something needs to be done. But it does mean that if costs of protecting completely against a particular risk is too expensive measured against possible outcomes or not possible, then you have a defence. However, all of this a judgement and must be measured against good practice. Unilateral decisions about what is or is not reasonably practicable should be guarded against. Take advice or at least research matter.
You can aim for perfection over a measured time scale. It all depends on base that you are starting from. HSE generally aims to encourage and advise. They generally prosecute only in extreme situations.
A good Safety Management System protects you from Litigation and also ensures any HSE is a very remote possibility.
The courts are far more frequently used nowadays but even if you are involved in an action if you have taken prior precaution of having a documented system chances of success of any claimant are much reduced.
Litigation in courts has demonstrated that teachers and school/employer cannot be held responsible for every accident in school hours, or at any time that children are in control of schools e.g. during educational visits. The courts accept that some accidents happen no matter how much care is taken or how well planning and supervision is carried out.
Where an accident happens in such cases, teacher/school cannot be held liable.
Good Practice is a defence and Headteacher’s Safety Toolkit provides you with proof of your good practice and guidance on what is acceptable. Some important points flowing from following cases which can give a good general guide to headteacher are: •Is an accident "foreseeable" or not ? •Is risk very low and are costs of mitigating risk reasonable and proportionate? •In ny accident involving games or "horseplay" there is consent and it needs recklessness or a high degree of carelessness to breach duty of care. •Does school have systems in place to reduce risk and is it following good or accepted practice ? •Was activity leading to accident "play" or something else.
Areas most frequently addressed by court during litigation include: •Checks on staff competence and training •Assessment of what is generally accepted as good practice •Cross checking that suitable preparations and precautions been put in place.
The following are a few important court cases regarding good practice and duty of care in H&S matters which may, by example illuminate some of matters decided in courts.
Court Cases: 2003 Simonds v Isle of Wight LEA A five year old returning to school from lunch at home went to play unsupervised on swings in school grounds and broke his arm. The LEA/school won and judge held that : •there was no "causative event" for accident. •the child was playing alone and that school had an adequate way of managing swings. •no playground could be free of hazard and it was as unreasonable for school to lock swings as it was to rope off trees in a playing field. •since mother had not delivered child back into care of school there was no breach of duty on part of school.
1997 Wilson V Governors of Sacred Heart RC Primary School A child going home at end of school day was struck in eye by another child's coat . The Governors won and judge held that: •Whilst school supervised at break and lunchtimes it was not common practice for children to be tightly supervised at end of day. •The accident could have happened just as easily outside school gates •The school had not breached it's duty of care or acted negligently.
1998 Mullin v Richards Two children had a "swordfight" with plastic rulers. One of rulers broke entering a pupil's eye and causing permanent damage. The claimfor damages was dismissed on basis that: •There was insufficient evidence to prove that accident was foreseeable in what had been no more than a childish game. •The teacher hadnot breached their duty of care
Other areas for Litigation: Litigation over years has clarified some of boundaries of duty of care and in complex litigation led areas more and more schools/LEAs/employers are investing in insurances to cover issues such as breach of duty of care in: •Bullying •Actions of poorly or unsupervised pupils •Undiagnosed or misdiagnosed special needs •The alleged adverse health effects of drinking, smoking, or drug taking •Failure to achieve expected results at Common Entrance, GCSE or A level •Inadvertent breaches of European Union legislation •Breaches of Health and Safety legislation, Data Protection, Children Act •Inadequate sports and outdoor activity supervision •Failure to teach correct syllabus •Libel or slander •Incorrect advice given in an official capacity •Unfair dismissal •Infringement of copyright
Dr. Paddy Swan is a qualified teacher with senior management experience in UK schools and colleges. He also has almost 25 years safety experience in industry. He has developed over 100 online and multimedia safe systems training solutions. Paddy is the author of School Basic Safety for Classroom and Support staff for UK schools and the Headteacher's Safety Management Toolkit at http://www.swaneducation.co.uk