However much detailed planning by schools and authorities for an educational trip, unforeseen events that result in injury to children will sometimes occur. But when this happens, do the courts impose unreasonably high standards on teachers and educational authorities, or are they aware of the risk of adding momentum to the compensation culture which some think is developing?
And what are the employment law issues involved in educational trips? Consider these cases in which teachers have faced judicial punishment for serious failures of supervision. In one case, a jail sentence of a year was handed down in connection with the death of a child during a school trip in May 2002. Paul Ellis was prosecuted by the Crown Prosecution Service (CPS), charged with manslaughter and an offence under Section 7(a) of the Health and Safety Act 1974.
Ellis pleaded guilty to both charges. But for his guilty pleas, the sentence would have been longer according to the judge, Mr Justice Morland, who criticised Ellis for being unbelievably negligent and foolhardy. Children aged between 10 and 13, under the supervision of Ellis, were allowed to jump into a natural rock pool which was part of what the judge described as a rampaging beck near Glenridding in the Lake District. The water temperature was 8C.
The child who died, Max Palmer, got into difficulties in the cold and turbulent water and was swept out of the pool and down the beck, despite the efforts of his mother and Ellis to rescue him.
Primary liability
Tragic cases such as that of Max Palmer are extremely rare. What made that case particularly unusual was the fact that the legal proceedings were of a criminal nature and for that reason were directed against the teacher personally. The CPS must have taken the view that the case was sufficiently serious to warrant criminal proceedings, and that there was a realistic prospect of securing a conviction under section 7(a) of the 1974 Act, which states: “It shall be the duty of every employee while at work to take reasonable care for the health and safety of himself and other persons who may be affected by his acts or omissions at work”. In theory, the Local Education Authority (LEA) as Ellis’s employer, might also have been prosecuted, but attempts to secure criminal convictions against corporate bodies rarely succeed.
If the legal proceedings in a case such as Max Palmer’s had been concerned solely with a civil claim for damages for negligence of the part of a teacher, they would almost certainly have been directed against the relevant LEA or the governing body, depending on who employed the teacher. The employer will be vicariously liable for acts of negligence committed by a teacher within the scope of their duties. It may also have primary liability, if for example it fails to put in place an effective system of planning and supervision in relation to school trips.
What can or should an LEA or governing body do if faced with the threat of a claim following an accident during a school trip? The insurer is bound to require a detailed investigation and reports on the circumstances. The employer should be wary of jumping to conclusions as to the cause of the accident or whether blame should fall on an individual teacher.
If the claim is contested, the employer may offer guidance to the teacher involved as to the litigation process. If the claim is settled because there is perceived to be some risk of finding negligence against the employer, it would be good practice to explain to the teacher, where appropriate, that a decision to settle is based on a commercial and legal assessment of the relative risks and costs of contesting rather than settling the claim. Settlement should not be seen by the teacher as an acceptance by the employer that the teacher was at fault.
The second largest teachers’ union, NASUWT, advised its members some four years ago not to take school children on trips because of concerns that accidents would trigger legal action. The union recently reaffirmed its view in comments to the Commons Education Select Committee, saying that society no longer understood the idea of a genuine accident and was becoming increasingly litigious.
However, David Bell, chief inspector of schools and head of Ofsted has emphasised that teachers have nothing to fear if they follow guidelines. The Department for Education and Skills (DfES) has issued extensive detailed guidance on educational visits since 1998, attempting to cover every foreseeable eventuality, setting out the legal obligations of LEAs, governing bodies, head teachers and teachers. (See box.)
Irresponsible behaviour
The Court of Appeal in Woodbridge School v Chittock had to consider a claim from a pupil (a relatively experienced skier) who, while on a school trip, attempted to ski past some slow-moving skiers, and was severely injured after losing control and falling off the edge of the piste and down a slope. On the basis of two previous instances of immature or irresponsible behaviour, his legal team argued that the teacher in charge should have confiscated the boy’s ski pass or arranged for him to be closely supervised. The Court of Appeal rejected this.
The school’s duty was said to be that of a reasonably careful parent with experience of skiing and its hazards and of running school trips: there was no duty to prevent injury from mishaps resulting from a pupil’s misjudgement or inadvertence. A teacher is not negligent if they choose one of a number of reasonable options to discharge their duty.
On the facts of this case the court accepted that the teacher acted reasonably in reprimanding the boy after one previous incident when he was found skiing off-piste and obtaining his assurance that he would stay on-piste in future. Want of supervision was not the problem in this case. The accident resulted from the boy’s own carelessness.
From schools’ and teachers’ point of view there was similar encouragement from the Court of Appeal in the case of Simonds v Isle of Wight Council in September 2003. That case did not involve an educational visit as such, but did raise the question of the extent of a school’s duty to provide supervision so as to minimise or eliminate hazards. A young boy fell from a swing adjacent to a sports field while attending his school’s sports day. The court accepted that there was no duty on the school to immobilise the swings any more than there would have been a duty to fence off a tree in the playing field to prevent a child from climbing it.
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Does the union hostility stem from a reluctance by teachers to give evidence in court? Is there a concern that involvement in an educational trip in which a child is injured without fault on any teacher’s part is still perceived as potentially damaging to career prospects? Is it felt that governing bodies or LEAs provide insufficient support for teachers who find themselves involved in internal investigations or litigation following an accident to a pupil?
Local authorities were warned by the Court of Appeal in a case involving the investigation of sexual abuse allegations against the dangers of the knee-jerk reaction rather than a cool, clear and structured response. NASUWT is understood to be the only teaching union which officially advises its members against participation in education trips. It should reflect on whether this advice is a knee-jerk reaction, as opposed to a cool, clear and structured response.
Keith Potter is an associate in the employment department at Stevens & Bolton LLP
DfES guidance
- There is a need for an appropriate risk assessment for any school trips undertaken, which must include an assessment of the training needs for staff and pupils and the appointment of a suitably experienced and qualified group leader. In most schools, responsibility for this is placed with a senior teacher appointed as education events co-ordinator
- Group leaders and teachers must consider stopping a visit if the risk to health and safety becomes unacceptable
- Pupils must be informed of the need to obey instructions at all times, not to take unnecessary risks and to inform the group leader of anything which might harm group members
- Schools must help parents prepare children for a visit by providing adequate information and obtain their consent to the child’s participation in the visit
- LEAs should appoint an outdoor education adviser
