West Sussex CC v Pierce: robust common sense from the Court of Appeal

Not far behind the long awaited reserved judgment in Coppage & Anor v SafetyNet Security [2013] EWCA Civ 1176, one little victory of my own in my first trip there in 20 years, we see another outbreak of robust common sense in West Sussex CC v Pierce [2013] EWCA Civ 1230.

The decision at trial involved an award of just over £3,000 to a 12 year old boy, after he had hurt his thumb by punching a stainless steel drinking fountain in a school playground while trying to punch his brother who was hiding beneath. The incident evidently happened on 9 June 2010 and the litigation against the school, alleging breach of duty of care, only began in 2012. Infer what you will...

We must, of course, focus above all on the legal analysis of Sharp LJ and her view that the law "would part company with common sense" if schools had to take steps to safeguard children against harm under all circumstances involving edges, corners or surfaces. As she concluded: "It is of course unfortunate that this little boy hurt his thumb in what might be described as a freak accident, but such things happen..."

But one particularly heartwarming passage elsewhere was her explanation of why the trial judge's reasoning was flawed. His legal error was to find that once there was a possibility that an accident might occur because the underside of the fountain was sharp, the school would be liable unless they had conducted "a properly considered risk assessment".

How joyful to see this reasoning slapped down. "Risk assessment" - one more bane of our lives. Over and above the sheer irritation of the term itself, ranking closely alongside Christmas shopping, carbon footprint and Labour government as one of the most irritating and soul destroying two word phrases in the English language, it reminds us at once of the nanny state, cowardly insurers, greedy chancers, compensation lawyers chanting their mantra "where there's blame, there's a claim", and the need to be seen to be doing something regardless of the futile waste of time and resources involved. 

There is many a tale of how the insistence upon risk assessment has blighted school trips. Far better to deprive the pupils of a museum visit than spend time filling in a needless, pointless form with every instance of what could go wrong and how to avoid it. Well, in the light of the Pierce judgment there might be scope to hit back with ridicule. 

The museum might of course be struck by an asteroid while the group is busily examining an ancient relic. Or there might be a paedophile lurking behind a display cabinet. So of course the teacher should fill in the appropriate box with a risk avoidance suggestion to the effect that the pupils are issued with mandatory Hi-Viz fluorescent jackets, red flags and whistles, and instructed to jump up and down, wave their flags vigorously and shout "Paedo!", in the event that someone who looks like a dirty old man is spotted at a distance... Endless scope. Hopefully reason will overwhelmingly prevail one day.