With all the mixed messages about health and safety, schools will derive some comfort from the clarity of a recent High Court decision.
The father of a child seriously injured during a school swimming lesson brought a claim for compensation against the school (through the local education authority).
The essential facts of the case were that the swimming lesson was:
organised by the school;
held during the school day;
held in a council run swimming pool;
supervised by a swimming teacher who was in the pool and a lifeguard at the side of the pool, neither of whom were employed by the school or local education authority, but by an independent third party.
The child’s father argued that the school was liable for his daughter’s injuries because they owed her a non-delegable duty of care by standing “in the place of a parent” (in loco parentis) during the swimming lesson.
The accepted legal position at the time was that the school owed a duty to “take such care of a pupil as would a reasonable careful parent.” If successful, this case would have effectively extended a school’s duty to make it also responsible for ensuring that third parties took reasonable care for pupils and rendering it liable for any default.
The court rejected the argument that the school owned a non-delegable duty of care in this instance for a number of reasons, including:
existing case law was against extending the duty; a school had a general duty to take reasonable steps for the safety of its pupils. This was discharged for off-site activities if the school knew the premises, that it was staffed by competent and careful people and that it was apparently safe;
such an extended duty did not even apply to hospitals, whose “whole purpose” was to ensure the health and well-being of their patients. Therefore there was even less justification for schools where health and safety, whilst important, was not the whole purpose of a school;
there was no reason to assume that a parent would not delegate their responsibility for the health and safety of their child whilst swimming to a life guard;
it would be a considerable expansion of the existing duty; fairness and justice did not warrant it.
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