| A Head Teacher's Safety Management Toolkit | | | | 2003 for which records are available in HSE's |
| Article | | | | Database, nonenominated the Headteacher as the |
| HEALTH AND SAFETY PROSECUTIONS AND | | | | defendant. In all of them an LEAor other |
| LITIGATION IN UK SCHOOLS | | | | Employer/Contractor was the defendant. The |
| Introduction: | | | | picture forthe make up of breaches is given |
| This article sets out some of the background | | | | below. |
| some and examples ofprosecutions and litigation | | | | HSC/HSE says exactly what they mean and are |
| against UK schools. | | | | transparent. Theyalso produce masses of clearly |
| Whilst Scottish Law and its' Legal System differs | | | | written information free. |
| from that in | | | | References are given to a large selection of these |
| England and Wales the writ of the enforcing and | | | | which arerelevant. No one has ever been |
| regulating bodythe Health and Safety | | | | prosecuted for following goodpractice. You may |
| Executive(HSE) runs across the border | | | | not have the formal documentation but if |
| andmatters are decided in the Criminal Courts. | | | | youhave taken care that you have records this |
| Litigation takes place in the Civil Courts and, in the | | | | always helps. |
| case of | | | | Your school must be safe "so far as is reasonably |
| Health and Safety usually revolves around aspects | | | | practicable" |
| of the LEA. | | | | This simply means that you cannot work miracles |
| Owner, school and teachers' duty of care to | | | | and that safetyhas to be judged against what is |
| children. Almost allof these cases are civil actions | | | | achievable. However, lack ofmoney is not an |
| taken by parents on behalf ofthe child for | | | | adequate excuse if a Risk Assessment shows |
| damages for injuries subsequent to accidents. | | | | thatsomething needs to be done. But it does |
| Prosecutions: | | | | mean that if the costs ofprotecting completely |
| The Health and Safety Commission is the actual | | | | against a particular risk is too expensivemeasured |
| agency of which | | | | against possible outcomes or not possible, then |
| HSE is the executive branch have published an | | | | you havea defence. However, all of this a |
| Enforcement Policywhich sets out very clearly the | | | | judgement and must be measuredagainst good |
| parameters for, and circumstancesin, which the | | | | practice. Unilateral decisions about what is or isnot |
| HSE should take action to enforce the Health and | | | | reasonably practicable should be guarded against. |
| Safety Law and Regulations. | | | | Take adviceor at least research the matter. |
| Enforcement of H&S law in the past targeted | | | | You can aim for perfection over a measured time |
| "Directors" and | | | | scale. It alldepends on the base that you are |
| "Company Secretaries" and clearly this had a | | | | starting from. HSE generallyaims to encourage and |
| business andcommercial bias. | | | | advise. They generally prosecute only inextreme |
| The current HSC Enforcement Policy appears to | | | | situations. |
| be targetingenforcement action against managers | | | | Litigation |
| as well as Directors and nowseems to be focused | | | | A good Safety Management System protects |
| on both the public and private sectorsequally. This | | | | you from Litigation andalso ensures any HSE is a |
| is also clarified in the Guidance to the | | | | very remote possibility. |
| Managementof Health and Safety at Work | | | | The courts are far more frequently used |
| Regulations which talks about | | | | nowadays but even if youare involved in an action |
| "organisations" being schools, colleges, voluntary | | | | if you have taken the prior precautionof having a |
| bodies,councils etc.as well as companies. Personal | | | | documented system the chances of success of |
| liability toprosecutions under the safety law has | | | | anyclaimant are much reduced. |
| been extended to person whoexercise a similar | | | | Litigation in the courts has demonstrated that |
| role to directors and company secretaries. | | | | teachers and theschool/employer cannot be held |
| This would certainly include Heads as the CEO of | | | | responsible for every accident inschool hours, or |
| their schoolsbut could also be interpreted to mean | | | | at any time that the children are in the controlof |
| Directors/Assistant | | | | schools e.g. during educational visits. The courts |
| Directors, or those persons in the school | | | | acceptthat some accidents happen no matter |
| employer's organizationdirecting and organising the | | | | how much care is taken orhow well planning and |
| H&S function. | | | | supervision is carried out. |
| In short any person or any organisation can be | | | | Where an accident happens in such cases, the |
| liable toprosecution under H&S laws and | | | | teacher/schoolcannot be held liable. |
| regulations for a range ofoffences. | | | | Good Practice is a defence and the Headteacher's |
| Staff, or others can be liable for putting the health | | | | Safety Toolkitprovides you with proof of your |
| and safetyof others at risk by acting negligently | | | | good practice and guidance onwhat is acceptable. |
| or interfering withsafety equipment. Others can | | | | Some important points flowing from thefollowing |
| be liable for advising orconniving to promote | | | | cases which can give a good general guide to |
| unsafe acts. | | | | theheadteacher are: |
| However,the main area where a cold chill runs | | | | -Is an accident "foreseeable" or not ? |
| down the spine forteachers and schools is the | | | | -Is the risk very low and are the costs of |
| potential for a child to be killedand a manslaughter | | | | mitigating the riskreasonable and proportionate? |
| charge to be brought. | | | | -In ny accident involving games or "horseplay" |
| Three points here are worth considering: | | | | there is consentand it needs recklessness or a |
| 1. All the manslaughter charges so far made have | | | | high degree of carelessness tobreach the duty of |
| been on thebasis of gross negligence. | | | | care. |
| 2. HSE does not bring this charge it has a protocol | | | | -Does the school have systems in placeto reduce |
| with thepolice where both of them run TWO | | | | risk and is it following good or accepted practice ? |
| investigations side by side andthe police hand a | | | | -Was the activity leading to the accident "play" or |
| completed file to the DPP or the Procurator. In | | | | somethingelse. |
| England and Wales it is the DPP who makes any | | | | Areas most frequently addressed by the court |
| charge ofmanslaughter and gross negligence is | | | | duringlitigation include: |
| acknowledged by lawyers tobe difficult to prove. | | | | -Checks on staff competence and training |
| 3. An old lawyer's adage adopted by H&S | | | | -Assessment of what is generally accepted as |
| professionals is that noone has ever been | | | | good practice |
| prosecuted for following good practice.Followgood | | | | -Cross checking that suitable preparations and |
| practice and you will be secure. | | | | precautions beenput in place. |
| Almost all the manslaughter charges made against | | | | The following are a few important court |
| teachers havebeen involved with offsite visits.I | | | | casesregarding good practice and duty of care in |
| estimate about 1-2,000,0000school visits have | | | | H&S matters whichmay, by example illuminate |
| been made over the same period that there | | | | some of the matters decided in thecourts. |
| havebeen about 6 prosecutions for mansalughter. | | | | Court Cases: |
| HSE actions are much more ikely to be for | | | | 2003 Simonds v Isle of Wight LEA A five yearold |
| breaches of the law andregulations. | | | | returning to school from lunch at home went to |
| Primary Schools and breaches of the H&S law. | | | | playunsupervised on swings in the school grounds |
| The actual numbers of prosecutions from 1999 | | | | and broke his arm. |
| -2003 are actuallyvery small only about 25 in total | | | | The LEA/school won and the judge held that : |
| are recorded as relating to | | | | -there was no "causative event" for the accident. |
| Primary Schools on the HSE Database. The | | | | -the child was playing alone and that the schoolhad |
| following is a breakdownof what these | | | | an adequate way of managing the swings. |
| prosecutions were for: | | | | -no playground could be free of hazard and it was |
| Breach AgainstNumber 1999 -2004 | | | | asunreasonable for the school to lock the swings |
| HASAWA 8 | | | | as it was to ropeoff trees in a playing field. |
| Electricity Regs 3 | | | | -since the mother had not delivered the child |
| Manual Handling Regs 2 | | | | backinto the care of the school there was no |
| Management HSW Regs 5 | | | | breach of duty on thepart of the school. |
| Construction | | | | 1997 Wilson V the Governors of the Sacred |
| Design Regs 3 | | | | Heart RC Primary School |
| Work Equipment 3 | | | | A child going home at end of school day was |
| Other 3 | | | | struck in the eye by anotherchild's coat . |
| So you can see that the main features of | | | | The Governors won and the judge held that: |
| prosecutions is foroffences under the Act itself | | | | -Whilst the school supervised at break and |
| and for breaches of the Managementof Health | | | | lunchtimes it was notcommon practice for children |
| and Safety at Work Regulations. An important | | | | to be tightly supervised at end ofday. |
| aspect isthat many of these breaches involved | | | | -The accident could have happened just as easily |
| contracts, so it is clearthat your control of these | | | | outsidethe school gates |
| needs to be secure. | | | | -The school had not breached it's duty of careor |
| If you are visited by an inspector they will not | | | | acted negligently. |
| generallyprosecute immediately. Though they say | | | | 1998 Mullin v Richards |
| that they do useprosecution as an important lever | | | | Two children had a "swordfight" with plastic rulers. |
| to help drive the HSC's targetsforward. | | | | One of the rulers broke entering a pupil's eye and |
| Inspectors are much more likely to give advice | | | | causingpermanent damage. The claimfor damages |
| and information orin the case of breaches to issue | | | | was dismissed on the basis that: |
| improvement or prohibitionorders | | | | -There was insufficient evidence to prove that |
| Good news about enforcement | | | | the accidentwas foreseeable in what had been no |
| Out of 75 breaches prosecuted by HSE in Primary | | | | more than a childish game. |
| Schools 1997 - | | | | |