Insurance claims stemming from accidents on the school playground are plagued by tension between the expectation that all children will be kept safe at school and the fact that a school cannot ever be an entirely risk free environment.
By its very nature, education involves some risk-taking, and children will make errors in judgement. However, it is up to each school to ensure that they prevent accidents from happening wherever possible.
Recent cases can be used to reach conclusions on how a school can lower preventable accidents and best protect itself and students.
In Palmer v Cornwall County Council (2009), the Court of Appeal was asked to review the case of a boy who was hit in the eye by a rock thrown at a seagull by another pupil. The issue in this case was the level of playground supervision, or the lack thereof. In this case it was revealed that one lunchtime supervisor had responsibility for well over 150 year 7 and 8 pupils, which was found by the Court of Appeal to be “quite inappropriate”. Further, this situation meant that there was only one supervisor able to glance occasionally at years 9 and 10, which was “clearly negligent”.
However, the judges stated that in such cases, there is no set pupil-to-staff ratio that must be adhered to in each and every situation. Because of this ruling, schools will need to assume that a court will look at the specifics of each case in order to decide upon an “appropriate ratio”. This makes the situation more challenging for schools making decisions on lunchtime staffing, but also gives them the flexibility to set the supervision that levels are most suitable for them.
While this case obviously demonstrates that schools should ensure appropriate levels of supervision, it also put the onus on ensuring that there is evidence of appropriate supervision in each and every area of the playground.
Practically, this may mean some areas require two supervisors, for example where one is overseeing a game of football, another may be needed to watch the remainder of the playground area.
The amount of supervision required will depend upon a number of variables, including the age of the pupils in question and the activities they are engaging in. Schools will need to reach a rational decision about allocation of supervision that should be informed by some form of risk-assessment so the decision can be justified.
A school should always be able to provide detailed evidence of the decisions made in this respect. It is also worth noting that there was a causation issue to consider in this case: would adequate supervision have deterred the pupil from throwing the stone?
Injuries during PE lessons
Similar issues in respect of supervision have arisen in cases relating to accidents during PE lessons. In the Court of Appeal decision of 2012 in Hammersley-Gonsalves v Redcar and Cleveland Borough Council, a child suffered facial injuries when hit by a golf club at the start of a golf lesson.
A class of 22 boys, each carrying one club and one ball, walked onto the field. One boy put down the ball and swung his club, inadvertently hitting the claimant.
The teacher with supervision responsibilities was at the back of the group and did not see the incident. It was accepted by the Court of Appeal that even the most observant teacher would not be expected to see every action of 22 boys walking in crocodile fashion. The judge found no lack of supervision. The teacher could not be expected to see every action no matter where he positioned himself.
The state of school premises are also be considered. Although it is a claim arising from a club situation, the findings of the Court of Appeal in Sutton v Syston Rugby Football Club (2011) are still applicable.
The case involves a 17-year-old who, during the course of a rugby training session, dived to the try line, was caught by an opponent, and fell onto his knee. His knee was gashed by a broken piece of plastic from a cricket boundary marker used a few days earlier. The judges found that a reasonable walk over the pitch would have been sufficient to discharge the duty of care and that this had not been done. As such, schools should always ensure that school grounds and premises are safe to avoid accidents and injuries.
Keeping faculty safe
Of course, schools must also take steps to ensure supervisors and teachers are kept safe. In Orchard v Lee (2009), the Court of Appeal was asked to review the claim of a supervisor who was injured when a 13-year-old boy playing tag with a friend ran into her.
The court was asked to consider whether there was a breach of the duty of care owed by a child of 13. On the facts, the defendant was playing a game within a play area, not breaking any rules and therefore was not careless enough to establish this breach.
Because judges also rule on cases involving the safety of school premises themselves, headteachers should take steps to create a safe environment for all – students, teachers and visitors. The duty here upon the school is found within the Occupiers Liability Act 1957. Schools are required to take such care as is reasonable to ensure that visitors are kept safe when using the premises.
In the recent decision of the Court of Appeal in Pierce v West Sussex County Council, a nine-year-old pupil had been playing with his brother by a metal wall-mounted water fountain on the school premises. The claimant intended to punch his brother but missed and punched the underside of the water fountain bowl instead, suffering a laceration to his thumb.
The question addressed was whether, as a matter of objective fact, visitors were safe, bearing in mind that children do not behave like adults. There was no evidence that the water fountain itself was not reasonably safe.
The school was not under a duty to safeguard children from harm under all circumstances. The school was no more obliged to take steps in respect of a water fountain than it would be in respect of any other numerous edges, corners or surfaces against which children might accidentally injure themselves while on premises.
This finding is reflected in many judicial decisions. A school has to expect children to be mischievous and sometimes reckless or careless. This should inform the duty of care in relation to the safety of the premises, which must be reasonably safe but with active thought given to their design and state.
It is clear that schools are not risk-free environments. Injuries in play areas are part and parcel of a child’s passage through their formative years of life, and the fact that a pupil is injured at school does not of itself mean that the premises are dangerous.
Schools must not, however, be complacent. They must be able to show that all reasonable steps have been taken to ensure that the premises were safe. Evidence of these steps, and of supervision, will be vital in defending injury claims of this nature.
Katrina Boyd is an associate in the insurance team at business law firm DWF.