When ‘no one has suggested that every playground for every 3-4 year-old must have a flat surface and nothing from which they can choose to jump.’
What happened?
A boy, aged 3 years and 9 months, was playing on some steps in the playground at Hillgrove School, Bangor in July 2004. He fell down a short flight of steps while jumping, hitting his head. The height of the fall was only around 57cm. He died a month later in hospital – not from the head injury, but from MRSA.
The HSE served the school with an Improvement Notice to prevent access to the steps by installing a gate. Two years after the accident, the HSE decided to prosecute the headmaster for breaching HASAW Act 3(1).
The prosecution argued that steps were a foreseeable hazard, and that it would have been practicable to keep children away from the steps, for example with more staff on duty and a gate.
The defence argued that the boy knew the area was out-of-bounds, and one teacher was considered sufficient to supervise fifty-nine children across two playgrounds during a break. Although the gate had been erected since the accident, it reduced the opportunity for supervising teachers to see into the playground.
Legal Outcome
The original trial judge summed up for the jury: “What you must decide is whether there was an unacceptable risk. The trivial risks of everyday life are not unacceptable. They are simply a fact of life, are they not?”
Despite this, a jury decided 11-to-1 that the risk was not trivial, but significant, the control measures inadequate and the headmaster was convicted. The fine was £12,500, but the damage to the headmaster’s and the school’s reputation was much greater.
The conviction was appealed. The headmaster’s barrister said there was nothing to suggest the steps – in use for twenty years previously – were a risk. The school’s expert witness argued “insignificant risks could be ignored, such as those arising from routine activities associated with life in general.”
At appeal, the Lord Justice agreed, making it clear: “No one in this case has suggested that every playground up and down the country for every 3-4 year old must have a flat surface and nothing from which an infant can choose to jump.”
What can we learn from what happened?
This is a fairly well-known case, and has been used as a case study for training purposes before. It can divide people’s opinion, as illustrated by the reversal of the original court decision at appeal.
It shows just how difficult it can be to distinguish a hazard that legally requires a risk assessment and risk reduction measures from the normal, everyday activities we and children get up to. And it is interesting that despite the original trial judge trying to steer the jury towards not convicting, and taking the same view as the appeal judge, the jury thought the risk was unacceptable. The law, represented by the judges, is often blamed for restricting everyday activities in the name of health and safety, but in this case it was the jury, representing society, who took the ‘safer’ view.
Source of Information
Bridget Leathley – from her ‘The Safer Choice’ website
Court of Appeal Judgment