Posted By Barry C
Looking for some help.

My daughter broke her arm in the school playground. There is a small hole (about 8" deep) in the ground right beside the school's playground area. Stepping into this tripped her up and she fell onto a part of the equipment which completely snapped both bones in her lower arm.

This happened when I was collecting her from shool - she was playing while I was waiting for my son to be released from his class.

The school have not reported this to RIDDOR, nor placed an input into the accident book. They stated that the accident happened when she was in my care, albeit on their premises, and they dont need to record it in any way. The LA's H&S dept have examined the equipment at my request, and declared it suitable, but have still not filled in the many holes in the ground - 3 months later.

She was in plaster for 8 weeks, and I have been advised to seek legal advice, but would welcome any comments or suggestions from members.

Thanks in advance, Barry

Posted By Paul Oliver
Phone the HSE yourself, I am sure they will be more than interested in the schools response.

Also contact your local councillor.

Posted By Peter Longworth
The fact that the child was being picked up from school is irrelevant. So is the fact that the school may or may not have a tight budget. Children will be playing in that area all the time and schools have a duty to children in locum parentis. The condition of the playground is the responsibility of the school full stop.
Your analogy of a protruding tree root in the countryside is a complete red herring because thatis a naturally occurring event. A hole in a play ground is not. Comments like "lot of kids break their arms + while out playing.If she is OK now with no lasting effects to her forget about it." seem to indicate that you think that children breaking limbs on school premises is somehow an occupational hazard and therefore acceptable.
Like any organisation the best way to avoid costly litigation is to make your premises safe.

Posted By Maggie Atterbury
There have been some interesting responses to this thread. Firstly, you are responsible for the safety of your child - the school is NOT in "loco parentis" for children who do not attend the school and therefore have not been placed in their care or are not in their care at the time. However, the accident occured as a result of a defect to the premises which resulted in a "visitor" (your child) being taken directly to hospital and therefore it is the responsibility of the school via the LEA to report the incident under RIDDOR. Have you asked the LEA if they reported it? You say that the equipment has been inspected and judged to be safe, but it was not the equipment that caused the accident. The reason that the LEA has not filled in the pot hole, may be because their scheme of delegation means that such repairs would be the school's responsibility using their devolved capital and thus the LEA would not have funding available to repair this.

I am not sure what you want to achieve. You could make a claim against the schools insurance and would undoubtably be successful, although the damages would be small (the child was under your care) and it would possibly increase the schools insurance premium, let alone damage the relationship between you and your other child's school. I am however assuming that you just want to make sure that it does not happen again to another child, so I suggest that in the first instance that you write to the Chair of Governors with a formal complaint that the obvious hazard in the playground has not been removed, when it could forseeably cause another serious accident. In my experience Chairs of Governors take formal complaints very seriously, but if you are unhappy with the way your complaint is dealt with, the LEA will have it's own complaints procedure, which you can follow. If all else fails, then try the Director of Childrens Services and your local MP, but it should be dealt with long before this. I hope that this helps.

Maggie Atterbury
LEA Health and Safety Team Leader

Posted By AJM
I cant personally believe your response Salus. This a little different from your claims culture conkers brigade.

They obviously share some responsibility for this surely the accident investigation itself would have a further preventative measure of repairing the hole. Because the fact an accident of such severity has occurred shows this.

Its the same as being responsible for a trespasser the playground would obviously need to be in a fit state anyway the cost of repairing it is negligible. I am sure in fact positive that if it had been the school heads child they wouldn't be to happy and saying stuff like, well such is life.

I am all for getting rid of a claims culture but blatant disregard for peoples safety must be punished and punished hard.

Alan

Posted By Barry C
Thanks Paul. I will contact the HSE myself - good idea.

Kind regards, Barry

Posted By Breezy
It means "acting in the place of a parent"

Tons on info on it as a legal term here:

http://en.wikipedia.org/wiki/In_loco_parentis

Posted By Robert K Lewis
The only real problem I have with Maggie's summary is the fact that you imply that both children are at the same school and the reason why she was playing was because your son's class had not finished for whatever reason. Thus your daughter had not left the school and was therefore technically still at school. Strictly children should be collected by parents at the gate, it is just that schools find that the situation of parents entering the grounds is an acceptable way of not having to monitor the exit from the premises up to the gate.

When all said and done children habitually play in the area and are encouraged to do so by the presence of the play equipment. There is thus a duty of care which increases with the decreasing age of children present. It is a bit like digging a hole in front of the house of a blind person and expecting a fall never to happen. Many organisations will offer a defence of "it has never happened before" so it is somehow the injured person's fault for doing the injury to themselves. If you lay a trap by act or omission then you become liable for the consequences when it is sprung.

These situations annoy me as so often the means of avoiding the problems has very little cost implication. Decide what outcomes you want and pursue the appropriate course either through your Ward councillor and the chair of governers or through the courts. In the back of my mind somewhere is the vague remembrance that there is a code of practice which covers the inspection of play equipment AND adjoining areas. Our LA members will no doubt put me right on this.

Bob

Posted By Descarte
I agree action should be taken if they are trying to sweep it under the carpet but think you are going about in the wrong way and think your motives are clouded by your own greed, even though you state you are after a claim no matter how small.

That small claim to you can result in even bigger costs which would have gone towards providing repairs for other things at the school or providing a better level of education not only for your child but many others.

Take action yes but dont be irresponsible or selfish

Posted By Barry C
Thanks Peter. I feel the same as you do, and cheers for fighting my corner with Salus's remarks.

This kind of thing could happen to other kids anywhere in the country. For those who have kids, you will desperately want them to avoid accidents.

Kind regards Peter, Barry

Posted By Barry C
Good advice GaryH - cheers for that.

Thanks Alan (AJM)

Barry

Posted By Barry C
Thanks for your response Bob.

The school in question is a primary school. All classes had finished, but the kids get released in a staggered fashion (presumably to aviod a stampede!)

P1-P4 kids need to be collected from the exit doors - which are at the rear of the school - close to the play area.

Posted By Richard Mathews
A lot of mention here of H&S legislation, (RIDDOR, Section 3 ’74 Act, etc.) all that apart I think you should consider the Occupiers Liability Act 1957 – Section 2(2) which states:

“An occupier of premises owes a ‘common duty of care’ to all his/her lawful visitors. The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe using the premises for the purposes for which he/she is invited or permitted by the occupier to be there”.

Whose care the child was in at the time is not relevant. If the area was unsafe and should have been maintained by the school in a safe condition, then they could be liable for negligence.

This (8” deep) hole was right beside a children’s play area, would it be reasonably foreseeable that a child could be injured by tripping in it, yes, I think so.

Am I advocating that the school should be sued? No, not really, but so often I come across schools that routinely seem to ignore serious safety issues to concentrate on the obscure or trivial.

My own son suffered a broken arm when he fell 1.2m from an unprotected walkway only a couple of weeks after I had flagged the danger (no I didn’t push him to prove a point). The same school, nearly 20 years on, has play equipment in the nursery that is blatantly unsafe, through lack of maintenance, and could cause serious injury to one of the children. They never learn!

Sorry I’m having my rant early as I’m off on holiday tomorrow so wont be around on Friday!!

Richard

Posted By Barry C
Descarte.

You make assumptions about me which is foolish, and also describe me as greedy just because I am lodging a claim!

For all you know, I could be donating any award to the school - or to charity - or by giving my daughter a better chance in life (she has a learning disability)

You also presume the school's costs would have gone towards repairing the equipment - which you cannot possibly know for sure.


The school's educational level is superb.

Posted By Stupendous Man
Oh dear... It is threads like this that make me ashamed to be involved with health and safety.

Maggie Atterbury has summed this up very well.

It is correct that it is not the responsibility of the LEA to do the RIDDOR report, it is the school. The issues around the devolution of power and money directly to schools rather than via the LEA are very important in a number of health and safety contexts.

I'm just really disappointed that a 'formal claim' has been lodged - Barry, you are obviously just after the money, otherwise you would have taken heed of other advice that was given and contacted the school or the governors efore considering litigation (or reporting to the HSE yourself as suggested by others).

Anyone remember the old Bob Hoskins advert??? 'it's good to talk'.

Shame we don't talk and resort to litigation instead.

Posted By Pugwash
welcomesafety.com - are they involved with this? Just a question.

Posted By Barry C
This is a personal matter between myself and the School - nothing to do with Welcomesafety.

Kind regards, Barry

Posted By Barry C
Thanks Paul.

We had to make alternative arrangements to holiday plans we had made and spent a load of time / loss of wages looking after her while off school. This was reasonably foreseeable, so that explains my actions.

Hope your daughter recovers, and has no lasting scars.

Posted By Denver Chalmers
There is no grey area here, the School 100% must report this accident under RIDDOR. The question of who was in control of the child, the school or the parents is not relevant to RIDDOR. The accident fulfils the criteria of being out of or in connection with work due to the infrastructure problem ie an 8" hole.
As to the civil claim, in Scotland the occupiers liability Act places a duty of care to all classes of visitor including tresspassers etc (just included for info) In addition it could be argued that if the premises are being used by children then a higher duty of care is owed, especially if the school has pupils with learning difficulties.
Three questions:
Was a duty of care owed----------- yes
Was there negligence---------------yes
Was there loss or damage as a result of this negligence----yes
Therefore a civil claim is an option.
I suspect the School and the LEA are fully aware of their obligations and are avoiding them.
School playgrounds should be safe for everyone including children and should not be full of holes, remember this hole was the cause of the accident, this child and the parents were let down by either the school the LEA or a combination of both due to the lack of inspection and mintenance and additionally through the criminal act of failing to report a reportable accident, I suspect a civil claim is the least of their worries.
Accidents like this are all the more tragic when you think that a simple risk assessment and a bit of maintenance could have prevented it.

Posted By Peter Hamilton
Hi Barry, I join this thread late in the day. Others have presented summaries of law and moral aspects. May I ask you most sincerely to ensure that you do take the advice of one respondent in making direct contact with the school governors or headmaster. That is the best way to ensure that "safety relevant" action is taken as aoon as possible. As others have suggested, it also sets up a conversation where you might just be able to use your professional safety background to help your kids school.
In my experience, the education sector tends towards risk aversion and this can sometimes lead to missing "the crocodiles in the swamp". Whilst questions such as the one you raised are entirely valid, they can also be a potential source of much of that risk aversion. Only you can decide whether you wish to seek redress for any loss suffered but that is just something else for the school to manage and will not, of itself, ensure any action is taken to prevent further incidents.
Going to the LEA, the HSE and insurers without having had a conversation with the school will inevitably put more pressure on the school and which schools do you know that have spare resources? I would not presume to tell you whther you can or should take these actions but I am asking you to consider the impact and effectivenes to your main concern; which I think I read as "making sure the school gets better at H&S so that your kids are safer in the future??"

Any comments made are intended to promote discussion and I freely accept any errors, misunderstanding of content etc that may be present in this response. I intend no judgment or criticsm in any of these comments.

My best wishes for a full recovery for your daughter.