In R v Porter’, the Court of Appeal allows an appeal by the headmaster of a private school against his conviction under the Health and Safety at Work Act 1974, for breach of his duty under s.3 to ensure (so far as is reasonably practicable) that non-employees are not exposed to health and safety risks. Mr Porter had been convicted by a jury following injuries sustained by a three-year-old boy, who jumped down some steps on school property when unsupervised.
Mr Porter was headmaster of a private preparatory school in North Wales. The school building was not purpose-built, and was situated in a rugged location. The school had two playgrounds, one being on a lower level than the other and the lower playground being set in a former quarry. Moving between the two playgrounds was made possible by a set of brick steps.
During a morning break in July 2004, a total of 59 children were playing in the two playgrounds, the younger children (including 10 of kindergarten age) were in the upper playground and the older children were in the lower playground. Only one teacher was on supervision duty during that break, and she was stationed in the upper playground. She was accompanied by a teaching assistant. The supervising teacher was absent from the playgrounds for a spell of around 30 seconds. During the teacher’s absence, a 3¾-year-old boy decided to play on the steps, and to jump to the lower playground from the fourth step. That was a descent of 22.5 inches. He lost his footing and landed face down on the bottom step.
He suffered a head injury, and was seen by the teaching assistant. He was taken to the local hospital and later transferred to Alder Hey Hospital, where he contracted MRSA. He died as a result of the MRSA, when he would otherwise have been expected to make a full recovery.
HSE serves improvement notice
Shortly after the accident, the Health and Safety Executive served an improvement notice on the school, requiring it to install a gate preventing easy access to the steps. It was warned that if it did not do so, the school would be closed. Mr Porter was then interviewed some 10 months after the accident, but there was not initially any specific allegation of a breach of s.3 of the Health and Safety at Work Act 1974 (HSW Act). Section 31 of the HSW Act imposes a duty on employers in respect of persons who are not its employees (in this case, a headmaster in respect of his pupils). Breach of that duty can be an offence, and s.40 of the Act provides that the burden of proving that it was not reasonably practicable to do more than was in fact done, rests with the defendant.
Some four years after the incident, Mr Porter was tried and convicted for breach of s.3 of the HSW Act, the charge eventually being formulated as having caused a risk of falling from the flight of steps, “to which children aged three to four years could gain unsupervised access”.
No expert was called by the prosecution to give evidence, but two witnesses who worked at other schools which exercised a higher level of supervision were called. Those schools followed 1991 Department of Health guidance, which recommended that for nursery classes the ratio of supervision should be two teachers for every 26 pupils. There was no evidence that this guideline applied to playgrounds, however, and it became clear that the safety records of the prosecution witnesses’ schools were not as good as that of Mr Porter’s school. Since Mr Porter had taken over his school there had been no reported incidents.
Mr Porter’s evidence remained that he considered one teacher represented sufficient supervision during breaks, especially given that that teacher would be based in the upper playground with the younger children. Moreover, there were several other places in the playground, including other sets of steps, where no similar accident had ever occurred. Unlike the prosecution, Mr Porter called an expert witness. Mr Porter’s expert considered that insignificant risks could be ignored by Mr Porter, and pointed out that nothing had been identified in the construction of the steps that created a particular, foreseeable and unacceptable risk of injury.
At the end of the trial, the judge directed the jury that they could consider the steps to have constituted a risk to the safety of a child, if he were to descend them unsupervised. Mr Porter was convicted by a majority of 11 to one.
Court of Appeal quashes conviction
The Court of Appeal first of all noted that it had never actually been alleged that there should have been constant supervision of the child who was injured in this case. It then referred to an earlier decision in R v Chargot Ltd (t/a Contract Services) and ors,2 to emphasise that what s.3 imposes is a duty to alleviate unacceptable risks. In the words of Lord Justice Moses: “What is important is that the risk which the prosecution must prove should be real as opposed to fanciful or hypothetical.”
The Court held that a jury, in drawing the line between real risks and fanciful risks, should have regard to a variety of factors, but no single factor will be determinative in itself. For example, the absence of any similar accidents, in circumstances which are a daily occurrence, will be an important indicator of a fanciful risk. Indeed, it was an important factor in this case: children must have jumped and played unsupervised on the relevant set of steps every day over several years, and yet no such accident had ever occurred. Moreover, no such accident had occurred without any higher level of supervision having ever been exercised.
Another factor in this case was that there were numerous other places around the playgrounds, including other sets of steps, where similar accidents might have occurred, but had not. Further, there was nothing inherently wrong with the construction of the particular set of steps where the accident in this case had actually occurred.
Finally, a risk assessment had been carried out by Mr Porter, and that had not identified any particular risk in relation to the set of steps where the accident occurred. The reason for this was that the risk of a child falling down the steps unsupervised was an ordinary incidence of everyday life.
Taking all of these factors into account, the Court took the view that there was no evidence to suggest that the child had been subjected to any real risk in respect of the set of steps on which he was injured. As a result, the Court did not need to go on to consider the reasonable practicability of any actions that might have been taken to alleviate a risk that did not exist. The case should have been withdrawn from the jury after all the evidence had been heard.
Accordingly, the Court decided that the appeal should be allowed, and Mr Porter’s conviction was quashed as unsafe.
Postscript: The Health and Safety Executive is currently in the process of appealing against the Court of Appeal’s judgment to the House of Lords.
 EWCA Crim 1271.
 EWCA Crim 3032.
Douglas Leach is a barrister at Queen Square Chambers, specialising in employment law and employers’ liability.
From Occupational Health Review, September 2008