06 February, 2020
When defending a claim arising out of an accident in an educational setting one of the first questions a lawyer will ask is 'where is the risk assessment'? Thorough and detailed risk assessments which have been acted upon are instrumental in defending claims for personal injury.
A risk assessment is the term used to identify the process of considering possible risks and hazards and then determining what reasonable steps can be taken to either remove or to reduce the risk. Schools are required to carry out suitable and sufficient risks assessments of their buildings and activities to ensure the safety of pupils, staff and visitors. Schools need to demonstrate that they have taken 'all reasonably practicable precautions' to minimise risk.
Following the recent case of Pook v Rossall School  EWHC 522 (QB), the Courts took a pragmatic approach and confirmed that schools are not obliged to reduce risk to the lowest level reasonably practicable. The Court found that there was a spectrum of risk; there were some risks that no reasonable school would allow pupils to take, such as running in corridors, and there were others which it would almost always be reasonable to allow pupils to take, such as those arising from taking part in sports.
Schools are not expected to eliminate all risks or to predict unforeseeable risks. The person carrying out the risk assessment should consider what are the likely risks/ hazards? Whether the risks/hazards can be removed? And if it is not possible to eradicate the risk or hazard, they should consider appropriate and proportionate control measures to reduce the risks/hazards.
Risk assessments should always be recorded either in writing or digitally and dated. However, the preparation of the risk assessment is not the end of the process. It must be acted upon. The Courts will want to see evidence that staff have been adequately trained and made aware of the risks and the control measures in place. Often when defending claims, members of staff will deny ever having seen the risk assessment. To avoid this situation, ask staff to sign off that they have seen and received training on the risk assessment.
Risk assessments should be retained so that they can be relied upon should a claim arise.
Risk assessments only need to be re-done if there has been a significant change or if you think the risk assessment might no longer be valid. For instance, if there has been an accident or if the school has acquired new equipment. A risk assessment is a 'working document' and you must always make sure it is up to date. It should be reviewed on an ongoing basis. As a guide, the HSE recommends that risk assessments should be reviewed on an annual basis.
Should a claim arise, organisations must be able to demonstrate to the Court that they have considered the risks, identified and implemented measures to control the risks and adequately trained staff.
Even if the school already takes the necessary steps to control the kind of risks which might be identified in a risk assessment, the Courts have made it clear in past decisions that they want to see written risk assessments and documentation evidencing the steps taken by the school/staff. In the aforementioned case of Pook v Rossall School  EWHC 522 (QB), the provision of a well thought out and "impressive" risk assessment not only demonstrated to the Court that the teacher was well aware of her duty of care towards the children but that she took that duty very seriously.
Useful guidance can also be found on the HSE website https://www.hse.gov.uk/education/index.htm
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