Taking children on school trips can provide them with tremendous educational opportunities. On the other hand, things can go wrong, and questions of legal liability can arise. The recent case of XVW & YZA v. Gravesend Grammar School for Girls [2012] EWHC 575 (QB) explores the legal responsibilities of schools where something has gone terribly wrong on a school trip.
Two girls between the ages of 15 and 17 took part in an adventure trip to Belize where they were raped by a local man (A) who owned the farm where they were staying. On the trip the girls were accompanied by a female school teacher, and two representatives of an adventure travel group. A claim for negligence was brought against the school and the company involved in arranging the trip.
Mackay J. rejected the argument that the school was vicariously liable for A’s actions. It was suggested that although he was not an employee of the school, he was “recruited or enlisted as part of the leadership team and entrusted with the supervision and care of the girls”. Mackay J. explained that the test of vicarious liability was set out by the House of Lords in Lister v. Hesley Hall Limited [2002] 1 AC 215: the key question was whether there was a sufficient connection between the acts of the tortfeasor and the work he had been employed to do such as to make it fair and just that the employer should be liable for them. In Lister, the sexual abuse of children by the warden in a boarding house was ‘inextricably interwoven with the carrying out by the warden of his duties’, and vicarious liability was made out.
In the Gravesend case, Mackay J. accepted that the girls did work on A’s farm, and that A allocated the work and explained what was to be done. Nevertheless, Mackay J. found that the work was carried out under the direct and continuous supervision of the leaders, and “true control” of the tasks performed by the girls lay with the leaders and not A. Similarly, although A had facilitated a trip to a local swimming pool the day before the rapes, and had driven them to and from a bar the previous evening, the judge found that the girls were continuously under the direct supervision of the leaders. In the circumstances, Mackay J. held that the facts fell far short of a situation where it would be just and reasonable to hold the school vicariously liable for A’s actions.
Mackay J. also rejected a claim based on direct liability. It was contended that the school breached their duty of care in arranging for only one teacher to be allotted to the group. Reference was made to the Department for Education and Employment’s good practice guide: Health and Safety of Pupils on Educational Visits, applicable at the time. (This has now been replaced by a much shorter document put out by the Department for Education: Health & Safety: Advice on Legal Duties and Powers for Local Authorities, Head Teachers, Staff and Governing Bodies, Updated: 7 February 2012).
The previous guidance provided that ‘A minimum ratio of one adult to ten pupils is a general rule of thumb’ for school trips, and that ‘at least two of the adults should be teachers.’ On this trip, there were three adults attached to the group, but only one was a teacher. Mackay J. rejected the argument that it was negligent not to have arranged for another teacher to go with the group. The other two adults were former soldiers who had very substantial experience of this kind of trip. The judge found that ‘There was no occasion on this expedition when difficulties were caused by the absence of a second teacher; the presence of two technical experts, who between them had 50 years of military service and a large number of years of experience of expeditions in all environments, was a positive bonus.’
The judge went on to consider the further contention that the leadership team of three were in breach of their duty to exercise reasonable skill and care to keep the girls free from foreseeable harm at the hands of A, and specifically to respond appropriately to indications that A posed a risk to the girls: he had acted inappropriately towards them the previous day – at the swimming pool, and at the bar in the evening.
It was accepted by the school that a duty of care in tort was owed to the girls: that the school was obliged to take such reasonable care to ensure the safety of the pupils on the trip as would be taken by a reasonably careful parent. Mackay J. explained that the scope of this duty was whether “the situation was one where it is readily understandable that the law should regard the defendant as under a responsibility to take care to protect the claimant from the risk” (per Sir Anthony Clarke MR in X and Y v. LB Hounslow [2009] EWCA Civ 286); which was merely another way of stating the principle from Caparo v. Dickman [1992] AC 605 that the imposition of the duty must be “fair just and reasonable”.
On the facts, Mackay J. found that the leaders were not put on notice that A had been “grooming” the girls as potential victims. They had not heard comments that A had made at the pool, and the comments were not reported to them. As for the suggestion that there was, in any event, a foreseeable risk of sexual assault of some kind which should have been protected against, and that the checks carried out on A were inadequate, Mackay J. held that he was satisfied that the checks were appropriate. There was no criminal record that had gone undiscovered. Furthermore, the girls were continuously supervised, and the judge found that ‘Short of posting a guard on the door of each cabana, or instituting some system of watch-keeping, there would have been no way of defeating’ A’s assault on the girls. A was ‘an unscrupulous, determined and skilful attacker’, and the precautions taken were found to be ‘reasonable and proportionate’.
In essence, Mackay J’s judgment acknowledges that schools must take seriously their responsibilities for risk assessment of school trips, and allocate appropriate resources. Schools cannot, however, be held liable for anything that goes wrong on the trip, even something that goes terribly wrong. There are some circumstances in which it is simply not just and reasonable to impose liability on schools for wrongdoing towards pupils in their care.