School trip organisers are likely to be more apprehensive than ever following the drowning of 10-year-old Max Palmer on a visit to Cumbria.
Heads should reassure staff that, so long as the organisation is meticulous, they will not be personally liable for negligence. In theory, a teacher who is reckless can be held criminally liable for an accident on a trip but this has never happened.
The responsibility for health and safety on visits belongs to local education authorities and governing bodies, and the management responsibility to heads. Between them they are required by the Management of Health and Safety at Work Regulations 1999 to "assess the risks of any activities, introduce measures to control the risks, and keep employees informed of the risks". Employees are expected to assist to the best of their ability.
But the law does not require employers or employees to eliminate all risks. Heads, and leaders of school parties, are expected to do everything that is "reasonably practicable" to "minimise" risks. "Reasonably practicable" is not defined, but it does not mean that which an expert in the field can achieve; nor does it mean "only what we can afford". It is what an "ordinary" teacher might be expected to do. Ultimately it would be up to a judge to determine whether a teacher had acted to an ordinary standard.
Courts will look at three issues in reaching a decision about negligence in an accident:
* whether there was adequate "supervision";
* whether there was adequate "protection" against the event; and
* whether the leader and the party had adequate "training".
The Department for Education and Skills' Health and Safety of Pupils on Educational Visits (1998) guidance advises that LEAs, governors and heads should set standards of competence for each type of visit, using national governing body awards as benchmarks for competence in adventure activities. Staff must also have clear guidance on supervision and recommended adult:child ratios, and be trained in health and safety responsibilities and risk assessment. Many schools now believe that it is safer to use expert external providers than to expose their staff to charges of negligence.
Draft DFES guidance (2002) recommends that all LEAs appoint an outdoor education adviser, with all schools having a visits co-ordinator in the leadership group, and trained leaders.
But no matter who carries out the delegated tasks, it is important to note that, throughout, the employer retains the ultimate responsibility. LEAs and schools should, therefore, keep checking that delegated tasks are being carried out.
The new recommendations should go a long way to remedying confusion over who is responsible for what that is recognised as a major contribution to accidents.
Refer to the updated version of the DFES website the Management of Health and Safety at Work Regulations 1999. Activities Centres (Young Persons'
Safety) Act 1995.
Chris Lowe is honorary legal consultant to the Secondary Heads Association and editor of Croners' School Governors' Manual