Sense and sensibility

How worried should a school or college be if a parent brings a case against it in court? As long as it has taken proper precautions, the situation is not as dire as it might seem.

'Better drowned than duffers. If not duffers won't drown.' Swallows and Amazons

Unfortunately, a dream parental consent form like this one from Commander Walker to his children belongs to fiction. Most deputies, even if they did receive it, would repeat the mantra, "We live in an increasingly litigious society", and ask a teacher to check the risk assessment.

Actually, the position for schools is better than it looks. Statistically, society is not more litigious. And to get compensation you need money and a case. Constraints on legal aid make the money hard to come by even with 'no win, no fee' and the standard that must be met to win a case is high.

However, schools are open to litigation, both civil and criminal, and the shifting boundaries of legal responsibility between governors, heads and local authorities put school leaders more at risk, if only for having failed their employers. "Here's a fine mess you've got me into," is a quick route to a P45.

A child knocked down on a foreign trip; the school minibus crashing; failure to diagnose a special educational need; entering children for the wrong exam; staff member's work-induced stress; allowing football to be played in the school yard; each might lead to a civil case.

What binds these disparate issues together is the concept that the lawyers call 'tort'. However, to make good a claim there has to be damage, essentially quantifiable in cash. The action of the defendant has to be directly related to the harm. If cause and effect are too remote from each other, or if some other factor impinges on the result, the claim may fail.

Making the case

For instance, in most cases, the 'wrong exam' claim would be likely to fail. There would be difficulty in proving monetary harm and if the claim was for compensation for reduced lifetime earnings, there would be plenty of room for argument as to how other factors than one missed exam might have an effect.

There must also be a duty of care, either as part of the job or assumed by us (when taking on responsibilities beyond the school gate, for instance). We must have foreseen, or should have foreseen, what might happen. The test is what a reasonable person would have done, taking reasonable care in all the circumstances.

Someone with a professional qualification is expected to be more able to anticipate harm in that area of competence. Thus, a recent case found against an educational psychologist for failing to diagnose a child's needs correctly.

Altogether this is a very high standard to meet, which is why, for example, a school that has followed DfES advice on trips is likely to be safe.

Identifying risk

A school must make sure, however, that having identified a risk and identified a way of minimising that risk, it actually does what is necessary.

The school which identified a problem with leather footballs in the playground and failed to enforce a ban on them lost its case. Leaving dangerous items where children can get at them and failing to have duty staff where they are supposed to be might also do so.

Responsibility is not always clear. If parents accompany a trip on which their own children are going, it must be clear who is in charge. A scout leader told a child not to go into a dangerous place and the child then asked his father, who was with the trip, if he could go there. The father said yes. The child was injured and the father successfully sued.

Parents could also take action as a result of damage from a breach of a statutory duty, for example, health and safety at work regulations or fire regulations. However, here the most serious danger arises from criminal, rather than civil, prosecution. This is most likely to be taken out against the owner or occupier of the premises but it is possible for action to be taken against us as the manager.

A breach of these regulations is called a 'strict liability' offence. Like speeding, if it happens, we are guilty. That what we did was reasonable in the circumstances may help our plea in mitigation but we still end up with a criminal record. It is important to realise that we may be interviewed under caution and ultimately charged. A call to the SHA hotline earlier rather than later is vital.

Staff need to be made aware of the dangers. "Don't worry, it may never happen," doesn't qualify as prudent. But schools should not allow themselves to be paralysed. The law is not stupid and if we take advice in good time and follow it we can sleep easy.

By Richard Bird, SHA's legal consultant