Catastrophic Injury at School

December 10th, 2010 by James Goudie KC

In Brown v North Lanarkshire Council [2010] CSOH 156 the Court of Session held that a LEA was liable for injuries suffered by a 10 year old school pupil in Motherwell when another pupil’s paintbrush penetrated his eye and brain while painting at floor level, where it was clear from the evidence that no consideration had been given by teachers as to the role which the brush might play in the activity, the risk of a penetrating injury from the brush was real and foreseeable, and a reasonable person in the position of the teachers would have taken steps to prevent the foreseeable risk of harm, either by provision of different brushes, or by allowing the work to be done at a desk.

Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), applicable in England and Wales and in Scotland, requires every employer to make a “suitable and sufficient assessment of the risks to the health and safety” not only of his employees but also persons not in his employment “arising out of or in connection with the conduct by him of his undertaking”.  The Judge held that the effect of Regulation 3 could not be to create a common law duty to assess risk in the manner required by the Regulations, as the mechanism for risk assessment under statute could not define what was required at common law; but the general nature of the duty on a school teacher was to take reasonable care for the safety and health of their pupils, and to exercise care and forethought having regard to their age, inexperience, carelessness and high spirits and the nature and degree of danger, not to subject them to avoidable risks of harm, applying Beaumont v Surrey County Council (1968) 66 LGR 580, where Geoffrey Lane J, as he then was, described the standard of care for a teacher as “a high standard”.  The risk arose not from the use of the brush in itself but from the circumstances of its use.  It was these circumstances which had to be considered in assessing whether there was a foreseeable risk of injury.  The brush was a long pointed object being used t floor level with its sharpest end uppermost; the children were in close proximity to each other in an unstable position where backward and forward movement was expected.

James Goudie QC

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