We review a case where a school was prosecuted for failing to ensure the safety of a pupil during a PE class, particularly after the risks were assessed and highlighted but recommendations were not complied with.
On the 24th March 2015, the governors of Judd School in Tonbridge were prosecuted under Section 3(1) of the Health and Safety at Work Act 1974 (HSWA), after a 14-year-old pupil was severely injured when hit by a shot put thrown by another boy. Section 3(1) HSWA 1974 places a duty on an employer to ensure, as far as is reasonably practicable, the health and safety of those persons who are not employees. Sevenoaks Magistrates handed down a fine of £10,000 with £1,375 in costs.
At the conclusion of a PE lesson, a pupil left a triple jump area and was standing on the edge of the shot put landing zone to check a friend’s throw. At the same time, another pupil was mid-turn completing his throw resulting in the incident. The pupil suffered life-threatening injuries requiring emergency brain surgery on a fractured skull.
The Risk Assessment and subsequent non compliance
The school had carried out a Risk Assessment for PE lessons. However, although it had referenced guidance by the Association for Physical Education, it did not follow their recommendation that lessons be restricted to a maximum of four sports with only one a throwing event, on numerous occasions. In this lesson the six groups were participating in hurdles, long jump, triple jump, javelin, discus and shot put. The landing zone for the shot put was only about three metres from the end of the triple jump sand pit, where the 14-year-old had been competing.
It was found that by including six sports with three throwing events, the school had significantly increased the risk to pupils. The proximity of the triple jump pit to the shot put landing zone had further added to risk levels. It was identified the school had not adopted the measures referenced in its own Risk Assessment, namely that guidance on multi-event lessons had not been followed.
A case for alarm?
The Health and Safety Executive (HSE) has articulated that the goal should not be to eliminate risk and that clearly accidents and mistakes will happen in school sports. Indeed, with regards to ‘risks’ in general, particularly in relation to section 3 offences, the courts have made clear that when health and safety law refers to ‘risks’, it is not contemplating risks that are trivial or fanciful nor should it impose burdens on employers that are wholly unreasonable (R v Chargot (2008)). This followed the reasoning of R v Porter (2008) which sought to delineate real risks from those which are hypothetical and fanciful. HSE’s interpretation of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) dictates that the essential test should always be focused on whether the accident was caused by the condition, design or maintenance of the premises or equipment, or because of inadequate arrangements for supervision of an activity.
Learning harsh lessons
It is evident in the case involving Judd school, that the drafting of the Risk Assessment and policies of the school had significantly increased the school’s exposure to prosecution. It was clear that the risks had obviously been identified but controls had not been applied in practice. They had categorically recognised the risk to children engaging in PE lessons where there was “more than 1 throwing sport” occurring, as per the guidance available through the Association for Physical Education.
The lesson here is that schools, and indeed all organisations, must not only review their Risk Assessments procedures but must also ensure that any recommendations are clearly communicated to the people undertaking the activities. In this instance, the teachers should have been made aware of this policy in a clearly digestible way.
Like many other cases, this finding underlines the fundamental importance of ensuring that Risk Assessments (when drafted) are not put away on a dusty shelf but used as a vehicle to implement and maintain safe practices. Failure to do so will give HSE ammunition to point to obvious failures.
Risk assessments are a living document to drive improvements in safety which should be referred to and reviewed regularly to ensure compliance and avoid unnecessary risk.
Author: Simon TingleThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.