Running in a school playground did not give rise to a foreseeable risk of injury

On 31st January 2018, the High Court dismissed a claim brought on behalf of a child who fractured his skull after an accident during a PE lesson.  Tim Petts was instructed by Carl Grunewald at DWF on behalf of the London local authority with responsibility for the school.  The case, which it is hoped will be reported on Lawtel soon, considers risk and social utility in a very common school situation, namely running in a playground.

B was 10 years old at the time of the accident and one of 8 boys in a Year 5 class of about 18 in a south London primary school.  One afternoon in June 2014, a supply teacher and a teaching assistant took the class into the playground for a PE lesson.  After some warm-ups, exercises and other activities, the children suggested racing, and the teacher agreed.  The girls raced first, then the boys.  The girls raced from one end of the playground to the other without incident. During the boys’ race, there was a collision between B and P, the boy running on B’s left.  B fell and hit the back of his head on the tarmac. Liability was tried as a preliminary issue in front of HHJ Patrick Curran QC sitting at the Royal Courts of Justice.  Although the extent of any brain injury was unclear, preliminary medical evidence fortunately indicated that a full or near-full recovery was to be expected.

B’s case was two-pronged.  First, he said that the weather conditions that day were unsuitable for outdoor races.  There had been heavy rain and the playground was very wet, with some small puddles.  In such circumstances, the school had failed to follow its own risk assessment for outdoor PE/games, which said that the playing surface should be dry.  He said that he had turned around after reaching the end of the race, and saw P slipping because of the wet tarmac, at which point a collision was inevitable. Secondly, he said that the boys had not been adequately spaced out, which is why P ended up too close to him.  They had started along a painted line at one end of the playground and had to run about 50m to the other end.  The line was about 15m long, but a bike shed in the far left-hand corner of the playground meant that children could only run straight forward from about 12m of the line.  From the rest of the start line, anyone running straight forwards would encounter the bike shed.

It was common ground that the boys started off running with a notional “lane” of about 1.5m each.  However, B said that P and another boy to P’s left were positioned such that they had to deviate from a straight line to avoid running into the bike shed, and this was why P had ended up too close to him.  It was also argued that there was a foreseeable risk of injury from collisions in circumstances where the 8 boys were racing without tramlines to guide them, since it was foreseeable that a child might veer off course.  Therefore, it was said, the boys should have been split into two groups of four to give them much more space for running.

The school’s evidence was that the playground was at most damp, not wet.  There had been a small amount of rain earlier in the day but, according to C’s meteorological report, no rain at all since midday, about 2½ hours before the accident. Conditions were good and there were no puddles.  The first-aider’s accident report form noted “damp” weather conditions. The staff said that the PE lesson would have taken place in the school hall if the playground was wet, and noted that the after-school football practice had taken place outside instead of being cancelled.  While the witnesses could not recollect the details of how the boys came to be spaced out along the starting line, they insisted that the boys had enough space.  The space was adequate and no-one started off running towards the bike shed.  The teaching assistant, who was at the finish line, said that P had veered off course because he looked over his shoulder to see where the other boys were.  He accidentally collided with B, she said, and did not slip.

HHJ Curran QC accepted the school’s evidence about the weather conditions.  The playground was no more than damp, not wet.  Although the risk assessment said that the playing surface should be dry, the state of the playground in fact posed no foreseeable risk of injury for racing.  The teaching assistant’s account as to the circumstances of the accident were more reliable that B’s.  P had not slipped but had unfortunately veered off course.  The boys had sufficient space for running and none of the boys had started off racing towards the bike shed.  The boys could be expected to run in a straight line and there was no need for complicated instructions.  Over the distance being run, the risk of collision was not foreseeable or inevitable.  The suggestion that only 4 boys should have raced at a time was an unrealistic proposition.  The judge agreed with the local authority’s submission that the provisions of s.1 of the Compensation Act 2006 were engaged:

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b) discourage persons from undertaking functions in connection with a desirable activity.

It was perfectly obvious, he said, that running was a desirable activity.  The collision was regrettable and not B’s fault, but neither was it the school’s fault since there was no foreseeable risk of injury against which further precautions should have been taken.

The judgment will reassure schools that not every accident in a school environment will lead to a finding of negligence. If teachers take common-sense precautions such as making sure that the children are not too close together and that the surface is not unsafe, it will be difficult for claimant to show that an outdoor PE lesson posed unreasonable risks of injury.