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Schools 'not hazard-free zones'

An incident in which two brothers got "into mischief" with a water fountain in a school playground has led to a legal ruling that schools are not under a duty "to safeguard children against harm under all circumstances".

Three Court of Appeal judges - Lord Justice Dyson, Master of the Rolls, sitting with Lord Justice McFarlane and Lady Justice Sharp - unanimously declared that "schools cannot be a hazard-free zone".

In the lead judgment, Lady Justice Sharp called for "common sense" to prevail as she allowed an appeal against a £3,000 damages award made to Lewis Pierce, who injured his thumb as he tried to punch his younger brother, George, after being sprayed with water.

Warnings had been given that if the appeal failed, similar fountains up and down the country would have to be removed from schools because of fears of similar compensation claims.

The judge said: "It is of course unfortunate that this little boy hurt his thumb in what might be described a freak accident, but such things happen."

Lewis was nine-and-a-half and his brother seven when the incident occurred on June 9 2010 at St Andrews' School, in Nuthurst, Horsham, West Sussex.

The judge described how the boys "got into mischief" while they were at the school with their mother for an after-school gardening club, which their mother helped to run.

Earlier in the day a stainless steel fountain had been fixed to a wall in a passageway in the playground by school maintenance engineer Allan Jones.

The judge said: "George sprayed the claimant (Lewis) with water from it and the claimant then tried to punch George who, by then, no doubt prudently, was positioned somewhere underneath the water fountain".

George dodged the punch, and Lewis punched the underside of the water fountain bowl instead, cutting his right thumb and damaging a tendon, which was repaired under general anaesthetic.

The judge said Lewis made a full recovery. He was left with a 2.7cm hockey stick-shaped scar about which, according to his own medical evidence, "he was completely unconcerned".

Lewis sued for compensation through his mother, Annette, under the Occupiers Liability Act 1957 on the grounds that his injury was a result of the negligence or breach of duty of the local education authority, West Sussex County Council.

District Judge Gamba, sitting at Brighton County Court, ruled on November 26 2012 the authority was liable for damages and awarded Lewis a total of £3,215.

The district judge said that, in his opinion, the underside of the water fountain which he examined was sharp and that neither Mr Jones nor the school bursar "considered what risk the water fountain might pose to children".

There was "a distinct possibility that children might skylark around, and could easily trip and cut their heads against the underside of the fountain".

There was no evidence, said the district judge, that "a properly considered risk assessment" had been carried out and he was forced to conclude the education authority was liable in damages.

Allowing the education authority's appeal against his ruling, Lady Justice Sharp said the district judge had proceeded on the flawed basis that, once he had determined the underside of the fountain was sharp, and there was "a possibility" that an accident might occur, the education authority was liable for what happened unless it conducted a risk assessment.

She said it was important when considering whether duties under the Occupiers Liability Act had been complied with "to emphasise that schools cannot be a hazard-free zone".

The question which had to be addressed was whether the school premises were reasonably safe "bearing in mind of course that children do not behave like adults, and are inclined to lark around".

The judge said she had felt the underside edge of the fountain and did not think it could be described as sharp, "let alone extremely sharp". It was not possible to cut a finger by pressing on it.

"But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children."

The edge could have been bevelled, or padded, and had that been done, Lewis might not have injured his thumb - but that "missed the point".

The judge said the school was not under a duty "to safeguard children in all circumstances", and "no more obliged as an occupier (of its premises) to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises.

"The law would part company with common sense if that were the case, and I do not consider that it does so."

The education authority's barrister, Iain O'Donnell, had told the court the fountain in question was a model used in schools the length and breadth of the country and about which no complaint had ever been reported.

He said: "It is submitted that the judgment might lead to other schools removing from their play areas all water fountains - of this and other similar types - for fear of potential claims against them."

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