Compensation Bill Review

The voice of reason or a day trip for political spin?
In a number of recent press releases and interviews Education Secretary Alan Johnson has urged teachers to provide more school trip for pupils. The Government has produced a manifesto promoting the importance of such trips and has committed funds for additional training and increased risk awareness. The Department for Education Studies (DfES) is to produce generic risk assessments for teaching staff to use and OFSTED is to monitor local authorities to ensure they have in place, appropriate health and safety practices for schools.

However, in recent times schools and teachers have chosen to avoid such outdoor activities principally for fear of being sued. The National Association of Schoolmasters and Union of Women Teachers (NASUWT) advises its member not to participate in such activities because of the threat of litigation in the event of an accident. In 2004 when responding to an OFSTED report on the benefits of school outdoor activities, Chris Keates, General Secretary of NASUWT said, “following the procedures and guidance is no protection against litigation”.

Yet, contrast this with the comments of the Education Minster Jim Knight who told the BBC Today programme that whilst the DfES took the possibility of litigation “very seriously”, it is the employers or local authorities, not individual teachers, who are liable. For the most part he is of course quite correct in this regard.

Despite the rhetoric, all parents demand that their children are safe from harm whilst receiving a full and rich education, and one that includes the possibility of educational trips. It is true that when accidents do occur, sometimes in extremely tragic circumstances, they attract a great deal of media attention and public outcry. However the risk or possibility of an accident occurring will always exist . It is comments as those of the OFSTED Chief Inspector, David Bell, that form the basis of the Government's recent attempts to redress the balance between the benefits of such activities against the risk of injury. He wrote in his 2004 OFSTED report that “the benefits of outdoor education are far too important to forfeit, and far outweigh the risks of an accident occurring”.

This concept of weighing up the ‘benefit’ against the ‘risk’ of course is not new and is indeed central to the fundamental principles of English law. As occupiers’ and employers’ cases are won and lost because courts have to take into account all relevant circumstances including the wider issues of commercial reality or public policy. However, whilst the Government’s manifesto appeases those who would see an improvement in teachers’ and schools’ needs to assess all and every risk, in other quarters the Government is encouraging the courts to temper such duties of care with the social need and benefits of activities, such as school trips and outdoor activities.

Receiving Royal Assent on 25 July 2006 the Compensation Act 2006 attempts to do just that.
The Act says that when a court is considering a claim in negligence or breach of statutory duty it must consider what, if any, precautions were available to the defendant. In doing so the court must then consider the possible effect it would have had upon the activity if the defendant had adopted the available precautions.

Section 1 of the Act states the court is permitted to dismiss an allegation of negligence or breach of duty if the precautions or steps might “prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity”.

Whilst such issues as what is ‘reasonable in all the circumstances’ remain of pivotal importance, the Act places much emphasis upon activities that are “desirable”. The courts are permitted to take into account measures that may have been available to the defendant, but by adopting them (whether in whole or in part) the desirable activity would have been adversely affected. In other words the Act is permitting the courts to adopt a ‘pros and cons’ approach to the activity undertaken by the school that on this occasion sadly resulted in injury, i.e. the risk of that injury occurring ought not to negate the benefits of the activities to the wider group.

It is likely that there will be much debate as to the subjective test of what constitutes a “desirable activity”. Although in the context of schools and other such institutions the potential benefits are hopefully clear for all to see.
So, what does the Act mean in terms of preparation for such school trips and activities? It certainly is not intended to negate the need for a holistic and thorough policy of health and safety management. Courts will look closely at the thought process adopted by local authorities and schools when identifying the potential risks of an activity and considering what measures, if any are necessary to minimise the risk of injury. It will only be when institutions can show that they had put their mind to such risks and considered the possible adverse effect any given precaution or step might have upon the activity, that a court will take into account the provisions of Section 1. If a local authority or school is unable to show such forethought then it will continue to fall short of its duties as employer or provider of education.

It is for this reason that the status quo is maintained. The courts are now empowered with the legislative means to take into account the socio-economic benefits of such activities. However, in expecting the courts to exercise such discretion the local authorities and schools have a duty to ensure that they have in place an effective policy of training and supervision of their staff and proactive approach to all matters of risk management.

For more information or advice, please contact the author
Craig Wallace on 0115 976 6140 (cwallace@brownejacobson.com)
or Sue Mabbott on 0115 976 6193 (smabbott@brownejacobson.com)
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