Legal Analysis - School Liability: Holding the line

The recent case against Ridgeway school raised important questions. Nick Yates examines why the case needed to be fought.

To what extent should schools be held responsible for the racial tensions of society at large? Should our high schools become prison fortresses and to what degree should schools anticipate the actions of malicious outsiders?

These questions — implicit in the claim against Ridgeway School brought by a pupil injured by an outsider — are of huge importance (www.postonline.co.uk/1591278).

On 11 January 2007, a break-time altercation between two pupils led to a pre-arranged fight in which one of the pupils, Henry Webster, received near fatal injuries at the hands of three young men who had been drafted in from outside the school to participate in the fight. Members of the Webster family witnessed the aftermath. Those immediately responsible were prosecuted and convicted.

All four members of the Webster family then brought claims against the school, arguing that it: had failed to keep the site secure (in particular, that it failed to fence the perimeter of the school and failed to have members of staff on duty on the tennis courts at the end of the day); had failed to establish better discipline in the school and deal effectively with racial tension; should have done more to protect Henry on 11 January 2007; and had failed in its obligations under the Human Rights Act 1998.

Defending the case

These claims culminated in a trial that lasted six weeks and heard evidence from no fewer than 52 witnesses. An adverse finding on liability would have left the defendant school's insurer — Ecclesiastical — with a bill for damages and costs conservatively estimated at more than £3m. From the start, it was clear that the cost of defending this case would be high. Add to that some highly inflammatory and negative press coverage and it would have been understandable had the insurers opted to cut their losses and settle. So, why didn't they?

First of all, the legal representatives' view that the claims were unlikely to succeed was confirmed, at a very early stage, by leading counsel. The school had both a strong defence and a willingness to defend itself. Second, the insurer was conscious of the effect that 'paying off' such claims has in emboldening other potential claimants against it, who are more likely to see even weak claims as a 'one-way bet'. The decision was thus taken to defend the case in full.

As indicated above, the trial itself was lengthy and extensively covered in the press. The claims were defeated on all counts. In particular, Mr Justice Nicol found that — in the circumstances of this particular case — the defendant "did not breach his duty of care by failing to construct a perimeter fence"; was not negligent in having not imposed a ban on mobile phones; and could not have foreseen the type of injury that Henry Webster suffered.

He also found that the school had not failed to implement a race relations policy and that, even if it had, "the claimants have not shown that the injury to Henry would have been avoided if the defendant had exercised proper care in this regard".

When considering the actions of teachers acting in their professional capacity, it was found that Bolam v Friern Hospital Management Committee (1957) had to be applied. Their conduct would be acceptable if in accordance with a responsible body of professional opinion.

Finally, the claim under the Human Rights Act — that the school ought to have known of a real and immediate risk of inhuman or degrading treatment — also failed. Mr Justice Nicol stated: "I reject the suggestion that Mr Piper [the deputy headmaster] ought to have appreciated that there was going to be a fight at the end of the school day. Even if he had, the type of punches or kicks that might be expected as part of such a fight would not be as sufficient severity to cross the threshold into the territory of inhuman or degrading treatment."

The implications of not fully defending Ridgeway School against these claims would have gone far beyond the offices of the insurer. The education sector, which had been following the case closely, would have become even more risk averse. Potential claimants would, as already mentioned, have been emboldened and press reports of a 'cave-in' would have further damaged public opinion, which already looks upon health and safety matters with a mixture of despair and ridicule.

Erosion of freedoms

More broadly, there is an important social and public policy reason for insurers to 'maintain the line' and attempt to fight the compensation culture where it should be fought — that is, in the courts. Every time a point is conceded, the freedom of individuals who are controlled, as we all are, by statutory and similar bodies, is reduced.

Fear of even weak claims being brought, plus great media attention to successful major claims (but almost none to the unsuccessful), combine to increase the perception of risk involved in everyday activities. All too often, the consequence is an over-riding mindset that aims to avoid or stop activity — rather than take the risk of some unfortunate event occurring — however remote that risk may be.

In choosing, as it did in this instance, to hold the line, Ecclesiastical was, of course, acting in its immediate interests (and has been amply rewarded for doing so). But it was also doing its bit to save the insurance industry from immeasurably costly, unnecessary claims and to prevent the further erosion of freedoms we all enjoy.

Nick Yates is senior partner at Everatt & Company, which represented the defendents in this case

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