Appeal Court judgement changes law on risk in playgrounds

In a landmark ruling, the Court of Appeal has made an important judgement which goes some way towards rebalancing the law in the field of health and safety.

It has quashed the conviction of a Head Teacher who was prosecuted under the Health and Safety at Work Act after a tragic accident in which a child fell down some steps in the school playground and subsequently died. In it's ruling, the Court concluded that there was simply no evidence that the child was exposed to risk by the conduct of the school as required by the statute.

The judgement makes clear that from now on, in order to prosecute under the Act, the authorities will need to prove that the injured person was exposed to a real as opposed to a "fanciful or hypothetical" risk to health and safety. Previously the courts had given the term 'risk' it's ordinary meaning of denoting the possibility of danger rather than actual danger.

Mr Porter had run the preparatory school since 1975 which catered for children aged 3-16 years. It was not a purpose-built school, and part of the site was located in a disused quarry. There was a higher and lower playground which were linked by a set of brick steps. The school had a superb safety record and there had never been an accident on the steps.

The accident happened during supervised playtime. Having made his way down the steps, the child (aged 3 3/4 years) jumped from the fourth step from the bottom, lost his footing and fell. He suffered a minor head injury and was taken to hospital where he subsequently died after contracting MRSA.

The Head was prosecuted under section 3 of the Health and Safety at Work Act 1974. Under this section, he had a duty to ensure as far as reasonably practicable, that children were not exposed to risks to their health or safety by the 'conduct of the school'.

In his judgement Lord Justice Moses gave helpful guidance as to how the courts should approach the question of whether a risk was real or hypothetical. The fact that there had been no previous accident on these steps was relevant. So was the fact that there was nothing wrong with the design or construction of the steps, nor did they create a foreseeable risk of danger. Significantly, there were numerous other places in the playground from which a child might choose to jump. He said that the fact that a young child might slip, trip or choose to jump from one height to a lower level is "part of everyday life". Where risk is part of everyday life, it is less likely that an injured child could be said to have been exposed to it as a result of the conduct of the school.