In a bitter reminder that ‘freak’ accidents are often no-one’s fault, the Court of Appeal has stripped a schoolboy of the damages he was awarded after cutting his thumb on a playground water fountain whilst trying to land a punch on his younger brother.
Schools could not always guard against children ‘larking around’ and ‘getting into mischief’ and to uphold 12-year-old Lewis Pierce's award would mean ‘the law parting company with common sense’, the Court ruled in upholding an appeal by local education authority, West Sussex County Council.
Lewis was a nine-year-old pupil at a Sussex school in June 2010 when his younger brother sprayed him from the water fountain which had been installed less than a week earlier. The seven-year-old ducked as Lewis made to punch him, missed and instead hit the water fountain, suffering a nasty cut to his right thumb which had to be repaired under general anaesthetic and left a visible scar.
Lawyers sued the Council on Lewis’ behalf and won him £3,215 in compensation at Brighton County Court. Although the water fountain was identical to thousands of others installed in 20% of schools in England and Wales, the judge found that its sharp edge had posed a foreseeable risk of injury to children.
Challenging the judge’s finding that it was liable under the Occupiers Liability Act 1957, the Council protested that the edge was ‘not unduly sharp to normal touch’ and that Lewis' injury was caused by his own ‘spontaneous and unpredictable act’ in forcibly punching the fountain.
Allowing the Council’s appeal, the Court acknowledged that ‘children do not behave like adults and are inclined to lark around’. However, it found that the fountain could by no stretch of the imagination be viewed as a danger to young people. A ruling in Lewis' favour would oblige schools to pad or otherwise protect every edge or corner on which children might injure themselves, and the Court remarked: "The law would part company with common sense if that were the case".
The Court concluded: "It is of course unfortunate that this little boy hurt his thumb in what might be described as a freak accident, but such things happen. This was not a case where the council was liable in law for his injury".
The duty for any occupier or in this situation the School under S2 Occupiers Liability Act 1957 is “take such case as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises…”.
Although the Act provides that any occupier must be prepared for children to be less careful than adults, whether the duty under S2 is broken depends on the circumstances. If in the case the School were able to show that they had taken reasonable steps to avoid any injury or that the assessment of any risk for injury was low, the Court of Appeal were correct in stating that this was an unfortunate accident.
As exampled by this case the Courts are wary of imposing an unnecessarily high burden on Schools but there are plenty of situations where Schools have been liable for any injuries suffered by their pupils. Veitch Penny have succesfully acted for a school pupil who injured his arm playing a game actually banned by the school but nevertheless permitted by the supervisor in charge.