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Sarah Mansfield: "All schools have a common law duty to take such care of pupils as would be expected by a prudent parent"

School trips: who's responsible?

Sarah Mansfield from BLM discusses where accountability lies for academies on away days

Posted by Stephanie Broad | November 05, 2015 | Law, finance, HR

School trips are rightly considered by many as an educational highlight for young children, and a great opportunity for them to learn whilst bonding with their classmates outside of their traditional learning environment. But, as with everything, school trips come with the risk of injury and, in the most unthinkable scenario, a fatality.

The recent events in France, which led to the tragic death of schoolgirl Jessica Lawson after she became trapped under a pontoon whilst swimming with friends on a school trip, serves as a stark reminder of the necessity for schools to undertake careful and thorough risk assessments when organising activity trips abroad and in the UK.

Fatalities on school trips are extremely rare – according to the Royal Society for the Prevention of Accidents, one child a year dies while on a school trip in the UK – but, even in isolation, one death is too many if it could have been prevented, so preparation is key.

A common misperception from schools, when contracting with third parties to organise activities and events, is that the school no longer controls the supervision and safety of the pupils. Conversely, it actually remains the primary duty of the school to keep the pupils safe from harm, whilst ensuring the educational benefits for their pupils. Importantly, only the carrying out and supervision of the activities arranged can be delegated to a third party.

Arguments over who is ultimately responsible generally centre around the issue of supervision, which can be assessed by reference to the nature of the activity and how the supervision and carrying out of the particular activity was managed

In the 2013 case Woodland v Essex, The Supreme Court set out ‘defining features’, giving rise to a non-delegable duty of care towards others, including students. In Woodland, a pupil sustained life-changing injuries in the course of a swimming lesson, due to the negligent actions of the lifeguard on duty. The school defended the claim as it said the school was not responsible for supervising the swimming lesson, which was considered the responsibility of the organisation that employed the lifeguard.

The Supreme Court held that the school could not delegate its primary duty to its pupil despite the fact it had contracted out the swimming lessons, as the child remained in the overall care and control of the local authority school, which included a positive duty to protect that pupil from harm. This meant that the negligence of the lifeguard was a breach of the school’s duty to their pupil, despite there being a contract in place between the parties. The court found that the contract did not pass on the duty towards the child, only the carrying out of the supervisory role, which was found to be below the standard expected.

At best, an academy can ensure their contracts provide them with effective indemnities in such a situation and consider expressly the sharing of responsibilities. It is also the responsibility of the school or academy to ensure that third party employees have adequate knowledge and first aid training in case of emergency.

It is equally important however, that schools and academies remember that school trips benefit pupils and do not simply make a ‘knee-jerk’ reaction and stop their pupils from undertaking such activities. These should be encouraged; such situations are thankfully incredibly rare due to the care and consideration taken by schools and academies when arranging trips.

The question in the tragic case of Jessica Lawson is who is ultimately responsible for the pontoon tipping - the school or the activity centre? Will this accident affect school trips in future? All schools have a common law duty to take such care of pupils as would be expected by a prudent parent. Arguments over who is ultimately responsible generally centre around the issue of supervision, which can be assessed by reference to the nature of the activity and how the supervision and carrying out of the particular activity was managed. It is essential that whenever an event such as these occur, that lessons are learned and steps taken to prevent reoccurrence in the future.

This tragedy is a timely reminder to academies that they are responsible for ensuring trips take place and for highlighting and considering all risks encountered (as far as practicable) are identified, risk assessed and considered. It must also be borne in mind that sometimes accidents do happen regardless of measures in place and that an accident does not necessarily mean someone is responsible – but that will not prevent an investigation occurring.

Sarah Mansfield is partner at risk and insurance law specialist BLM.

www.blmlaw.com

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