Anxiety over being sued keeps the myth of our compensation culture alive, Janet Wilson-Ward and Peter Thurlow write
Recently, headteachers applauded Confederation of British Industry chief Digby Jones for saying that children are being robbed of an understanding of risk by the everyday threats of the compensation culture.
Up to a point, Lord Copper, but the main threat arising from the compensation culture is, rather like the threat from crime, fear itself.
The compensation culture does not exist.
You would expect the CBI director-general to be in favour of risk, so headteachers who apparently fear it make strange bedfellows. The existence of the compensation culture has become so much part of the whinge about what's wrong with life that nobody bothers to question its truth, least of all those who are swept up by fears of how it might affect them. That particularly seems to include teachers, though of course they are not alone.
Scout troops call off their jamborees. Mothers are warned not to make cakes for school events for fear they may give someone food poisoning. Schools close during snow in case a child slipping on the ice could lead, somehow, to a hefty damages claim by an enraged parent.
Yet look behind the hysteria and you will usually find a Daily Mail headline. Last year the Government took the concerns seriously enough to carry out an extensive investigation, under the auspices of the Cabinet Office, to see what could be done.
They interviewed many experts and organisations, examined statistics and court records and talked to those involved in the business of suing. Many giving evidence were insurance companies, who might be expected to have an obvious axe to grind against such a trend.
But after several months' research the conclusion was that the compensation culture is an urban myth, the product largely of reckless news media and a few cynical politicians.
Courts do not hand out huge amounts in damages for trivial reasons. Nor are more people making claims. Statistics show public liability claims actually fell by 17 per cent last year. However as the report acknowledges, the effects of the fear of being sued can be devastating.
Yet it is perfectly possible for schools to construct a simple protocol to provide them with safeguards, though that in itself will not be enough as long as the unreasoned fear of being sued remains. Teachers need to know that they are acting within the law and how to deconstruct the myth plus the hysteria it promotes. Properly informed, any school can go about its business in confidence.
The issues of changing the culture of fear must be addressed elsewhere, but the legal principles are simple. For the record, make sure you know to whom the school reasonably owes a duty of care, and don't be misled by wild allegations of where responsibility leads.
Be clear about what constitutes reasonable behaviour by a teacher.
Compensation claims mostly arise from alleged assault or negligence.
Assault must involve intentionally or carelessly applying force, or causing someone to fear such force being applied.
To prove negligence, it must be shown show that there was carelessness, and in assault there might also be an allegation of intent. Where carelessness is the issue it must be proven that the standard of care exercised fell below that of an average prudent teacher.
It is a defence against an allegation of intent to show that contact was unintentional. But even if it were intentional there are defences, such as consent, which can be implied from participation in events such as sports.
So a child must accept the risks inherent in the game, though they don't consent to injuries which arise from causes outside the sport. A teacher supervising a football match would reasonably be expected to intervene if a fight broke out. But there has to be real injury, not a broken fingernail.
Above all, British courts do not award silly damages for even sillier injuries. The law is quite sensible. With clear guidelines on common situations, teachers have a perfectly viable defence. It is for local education authorities to put in place clear, concise and workable guidelines which will provide staff with a shield if necessary.
Remember when you read some headline about the threat to sue that it is written by a journalist with either an axe to grind, or a story to titillate. You don't then read about how the case never progressed further because there was no possibility that it had any legitimacy in law. You don't read about it because anti-climaxes don't make good headlines.
Janet Wilson-Ward is a barrister and lecturer on law at University of Bath.
Peter Thurlow is a consultant in communications and public relations specialising in law and public policy, and gave evidence to the Cabinet Office report into the compensation culture