Moses LJ, Openshaw J and Sir Richard Curtis
Statutory offence – Risk of injury – Duty to public – Defendant headmaster running school – Child suffering injury jumping down school playground steps – Defendant convicted of breach of statutory duty – Whether defendant exposing child to risk by lack of supervision – Whether defendant required to guard against risks of everyday life – Appeal allowed
The defendant was the headmaster of a private school for children aged between three and 16. The school had two playgrounds on different levels, access between which was primarily by way of a flight of brick steps. On 7 July 2004, children were playing in both playgrounds, with one teacher supervising in the upper playground, when a three-year-old child fell down the steps and suffered a head injury. He was initially treated at the local hospital, but was transferred to a specialist children’s hospital where he contracted MRSA and died. The evidence indicated that the child would not have died from the head injury, from which he would reasonably have been expected to recover.
The defendant was prosecuted for failing to ensure the health and safety of persons not in his employment, contrary to section 3(1) of the Health and Safety at Work etc Act 1974, in that he had exposed the child to the risk of falling down the flight of steps. There was no dispute that, under the 1974 Act, the defendant owed a duty to the children in the playground. The evidence indicated that during the defendant’s 29-year tenure as headmaster there had been no other complaint concerning health and safety and no previous accident had taken place on the steps, despite the fact that countless children must have used them, unsupervised, over the years.
Statutory offence – Risk of injury – Duty to public – Defendant headmaster running school – Child suffering injury jumping down school playground steps – Defendant convicted of breach of statutory duty – Whether defendant exposing child to risk by lack of supervision – Whether defendant required to guard against risks of everyday life – Appeal allowedThe defendant was the headmaster of a private school for children aged between three and 16. The school had two playgrounds on different levels, access between which was primarily by way of a flight of brick steps. On 7 July 2004, children were playing in both playgrounds, with one teacher supervising in the upper playground, when a three-year-old child fell down the steps and suffered a head injury. He was initially treated at the local hospital, but was transferred to a specialist children’s hospital where he contracted MRSA and died. The evidence indicated that the child would not have died from the head injury, from which he would reasonably have been expected to recover.The defendant was prosecuted for failing to ensure the health and safety of persons not in his employment, contrary to section 3(1) of the Health and Safety at Work etc Act 1974, in that he had exposed the child to the risk of falling down the flight of steps. There was no dispute that, under the 1974 Act, the defendant owed a duty to the children in the playground. The evidence indicated that during the defendant’s 29-year tenure as headmaster there had been no other complaint concerning health and safety and no previous accident had taken place on the steps, despite the fact that countless children must have used them, unsupervised, over the years. The defendant called a health and safety expert, who suggested that insignificant risks such as routine activities associated with life in general, could be ignored. He regarded as important the fact that there was no indication that the construction or placement of the steps constituted a risk of injury. Moreover, in his 30-year involvement in health and safety, the expert said that he had never found such a well-constructed flight of external steps being scrutinised under the 1974 Act. He concluded that the steps did not create foreseeable risk of possible danger, still less an unacceptable risk. The defendant was convicted but appealed against conviction.Held: The appeal was allowed.The prosecution had to establish that the defendant had failed to ensure that a child had not been exposed to a risk to his safety by the “conduct of his undertaking”. It was important for the prosecution to prove a real risk as opposed to a fanciful or hypothetical risk: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and R v Chargot Ltd (t/a Contract Services) [2007] EWCA Crim 3032 considered.The defendant was not obliged to guard against fanciful risks. No objective standard applied to every case, but important indicia or factors, none of which might be determinative but many of which would be important, would apply; for example, evidence of any previous accident in similar daily circumstances, which would be highly relevant in the present case. The evidence indicated that there was no real risk of the kind contemplated by the statute. The construction of the steps could not be faulted and no previous accident had occurred despite there being numerous steps from which a child might have chosen to jump. The fact that risk was a part of everyday life went to the issue of whether the injured person had been exposed to the alleged risk. Unless it could be said that the child had been exposed to a real risk as a result of the defendant’s conduct, no question arose as to the reasonably practical measures taken to meet risk. The conviction was unsafe and would be quashed. Patrick Harrington QC and Gerard Forlin (instructed by DWF Solicitors, of Manchester) appeared for the defendant; Timothy Horlock QC and Nicholas David Jones (instructed by the Health and Safety Executive) appeared for the prosecution.Eileen O’Grady, barrister
