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"In Loco Parentis": the liability of schools when disaster strikes

Summer school trips were one of the high points of the year when I was a child. I don't think anyone wholly forgets the bubbling anticipation that comes with the prospect of a totally brilliant trip.  Some were better than others.  An adventure weekend to Windermere where we jumped out of canoes and walked rope bridges was amazing.  The day trip to Martin Mere Wetland Centre was less good.  We sat on the coach for an extra two hours because the driver got lost.  It rained.  I can barely express the excitement that accompanied the school Centenary special trip to Alton Towers.  School trip season is approaching again now that the summer term has begun and, as usual, I reflect on the current state of the law.  It distresses me when it is said that the law is making it impossible for schools to give the next generation the same opportunities we had.  Organising, planning and supervising trips is an intimidating task.  Whilst the law rightly expects schools to take their obligations seriously - planning trips with care - media hype about the perils of litigation is perhaps overstated.  As the Court of Appeal has demonstrated once again, even the most tragic of cases will not necessarily succeed if the school has done its job properly and the claimant cannot show that any errors that might be identified would have made any difference.  Judgment was handed down last Friday in Wilkin-Shaw (Administratrix of the Estate of Charlotte Shaw (Deceased)) v (1) Christopher Fuller; (2) Kingsley School Bideford Trustee Co Ltd [2013] EWCA Civ 410. On 4 March 2007 Charlotte Shaw was 14 years old and participating in a training event for the Ten Tors challenge as part of a team from her school.  The team had completed one day of the training weekend. On the second day their supervising teacher decided that they had proved themselves under supervision and that it was appropriate for the team to progress to remote supervision and carry out a planned walk unaccompanied, checking in at pre arranged points with teachers.  The group successfully completed the second leg of the day's planned journey and arrived at a check point about an hour earlier than expected.  The teachers who they expected to meet were not there.  The supervising teacher spoke to the leader of the group (a pupil) on the telephone and told them to wait.  It transpired that the two members of staff who were supposed to meet them had lost their way and missed the checkpoint. When the teachers contacted the supervising teacher they were told to return to their car. The supervising teacher then received a telephone call from a scoutmaster (T) who had encountered the children waiting at the checkpoint. He told the supervising teacher that the group was starting to get cold and should continue walking. The direct route to the next check point led across the Walla Brook, which was swollen with rain water and uncrossable at that point. The supervising teacher spoke again to the group by telephone and told them to start walking but not to cross Walla Brook but to go round its head.  After the children had started out on the next leg T became involved again and offered to show the group where he had crossed Walla Brook earlier. While attempting to cross, with T's assistance, Charlotte fell in.  She was swept away by the strong current and drowned.  At trial the case was against the school alleging vicarious liability for the supervising teacher's negligence.  That claim was dismissed. Last Friday the Court of Appeal gave judgment on the appeal.  The case on appeal was rather different than at first instance but the Court allowed it to be pursued.  It was argued on behalf of Charlotte's mother that the teacher who should have been present at the checkpoint to meet the children was negligent in getting lost and that had she been present the children would not have followed the advice of T, the scout master they met while waiting at the checkpoint. The Court of Appeal found that the teacher had been negligent, but concluded that it was highly speculative to consider what would have happened had she been at the checkpoint.  The Court considered the duties of a checkpointer and considered that she may well have checked the fitness of the children then sent them on their way, so that she would not have been present on their return when they met T.  Even had she remained at the checkpoint the intervention of T would have broken the chain of causation. Whilst it would be wrong to suggest that anyone should take cheer from a tragic case of this sort, schools should take comfort from the care and rigor with which this case was considered at both first instance and on appeal. I hope that the legacy of this case is to emphasise that exciting trips should be planned properly and carefully, with appropriate training and supervision, but happen they should. 

End of term report

This has been a busy term for schools and a successful one for those who insure them.   What lessons can be learnt from the four important school cases which have been decided since March 2012? First up, on 9 March 2012, was the decision of the Court of Appeal in Woodland v Essex County Council [2012] EWCA Civ 239 in which the Court of Appeal, by a majority, held that it was not appropriate to extend the law of negligence to provide that a local authority owed a non-delegable duty of care to a pupil at a school to ensure that reasonable care was taken to secure her safety while she attended a swimming lesson arranged by the school but provided by a third party. Four days later, on 13 March 2012, in (1) XVW (2) YZA v (1) Gravesend Grammar School for Girls (2) Adventure Life Signs Ltd [2012] EWHC 575 (QB) Mackay J. found a school and a specialist expeditions company not liable for the rape of two female pupils by a local man who had acted as a guide during an overseas school trip. The judge held that neither the school nor the company could be held vicariously liable for the assault and since the attack had not been reasonably foreseeable it would not be fair, just or reasonable to define the scope of their duty of care to the girls so as to require them to have taken special precautions to avoid it. The claim also failed in Wilkin-Shaw v (1) Fuller (2) Kingsley School Bideford Enterprises Ltd [2012] EWHC 1777 (QB) in which judgment was given on 28 June 2012. Owen J. concluded that the claimant had failed to show that the death of her daughter while on a school trip training for the Ten Tors expedition on Dartmoor was the result of the negligence of the teacher who organised and supervised the training. Finally, as Ian Clarke discusses in the previous post, in Hammersley-Gonsalves v Redcar & Cleveland Borough Council [2012] LTL Document No. AC9101225, the Court of Appeal in an extempore judgment on 13 July 2012 held that a local authority was not liable in negligence for an injury sustained by a school pupil when he was hit by another pupil's golf club at the start of a golf lesson. As Ian points out, the court accepted that the teacher had provided adequate supervision and could not have been expected to see every action of all 22 boys at all times. Do these cases demonstrate that section 1 of the Compensation Act 2006 is having an effect?  This section was enacted by Parliament in response to wide spread criticisms of the so-called “compensation culture” and is, so far as I am aware, the only example of a provision of an act of parliament being used not to change the law but to allay public concerns about how the law is applied in practice. However, in Wilkin-Shaw Owen J. made clear his view that section 1 of the Compensation Act 2006 added little or nothing to the existing common law and observed that “it is somewhat difficult to see why it was felt necessary to enact it, and why, as enacted, it was couched in discretionary terms” - see [42] of the judgment. In my view, the “take home message” from these four cases is that it remains the law that just because there is a risk involved in a particular activity, those who owe a duty of care in relation to that activity are not automatically liable for damages when an accident happens.  As the cases make clear, the duty of care expected of schools arranging trips and activities is that of the reasonably careful parent taking into account “the nature and conditions of out-of-school activities of the type being undertaken ... [with] the appropriate level of experience and appropriate level of competence to discharge any role required of them” – see, for example, [39] and [40] of the judgment in Wilkin-Shaw. Lesson over! Image - http://www.freefoto.com/index.jsp