Boys will be boys…. But you can’t sue the school for it

Elliot Kay Elliot Kay

West Sussex County Council v Lewis Pierce (a child, represented by his litigation friend Annette Pierce) [2013] EWCA Civ 1230.

The Facts:

On 9th June 2010, Lewis Pierce, a 9 year old schoolboy at the time, was playing with his younger brother George in their school playground. There was a metal water fountain fixed to the external wall of the school which could be accessed from the playground. In the course of play George sprayed his elder brother with water from the fountain, causing Lewis to swing a punch at George. George was able to evade the punch but as a result Lewis connected with the water fountain, causing lacerations to his right thumb and damage to his tendons. Lewis made a good recovery from the injuries sustained.

The Law:

In accordance with section 2 of the Occupiers’ Liability Act 1957 an occupier of premises must take such care as is reasonable in the circumstances to ensure that visitors are reasonably safe in using premises for the purposes for which the visitor is invited/ permitted to be there. Further, section 2(3)(a) requires an occupier to be prepared for child visitors to be less careful than adults.

The First Instance Decision:

At first instance it was held that the school, as the occupier of the premises, failed to properly assess the risks posed by the water fountain and was held liable for Lewis’ accident. The school appealed the first instance decision on the basis that the water fountain did not pose a danger to school pupils and the injuries the Claimant sustained would not occur during expected or reasonable use.

The Appeal:

The Court of Appeal held that the school was not liable for Lewis’ injuries in these circumstances. Their Lordships found that the fountain did not present a foreseeable risk of injury, its edges were not sharp and it was properly fixed to the wall. Whilst an occupier must be prepared for child visitors to be less careful than adults, the school had fulfilled this duty by installing an entirely safe water fountain.

The Court emphasised that every case requires a detailed consideration of its facts but, generally speaking, schools (and other potential tortfeasors) are only required to prevent foreseeable risks of injury. In the circumstances, it was unfortunate that the injured party was a child but it was not foreseeable that the presence of a water fountain would cause a risk of injury. Occupiers cannot be required to maintain entirely hazard free premises and common sense must not be parted with.

The importance of this case:

This case provides a useful example of where the line is to be drawn when determining liability in personal injury cases involving children and indeed, schools. Whilst children should be safe in their playtime games, a common sense approach must be adopted in order to prevent an impossible duty being imposed on schools as occupiers. If it were not for cases such as this, schools would be required to remove all possible dangers on their premises, no matter how remote the risk of injury.

It is submitted that if the school had been held liable in this case, it would only be a matter of time before swings, monkey bars and slides would be removed from school playgrounds. And where would be the fun in that? It would be a case of “health and safety gone mad”.

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