Nicholas Thorne analyses a judge's rejection of a claim for injury arising out of the warm-up session at an after school club.
It is important to remember that reasonable supervision by teachers does not require them to see every action of every pupil, no matter what the circumstances might be. Indeed, over-supervision, particularly with high-school age children, can be potentially damaging in that it removes any element of trust and may impair their learning and the development of individual responsibility.
A school’s duty of care
The nature of the “enhanced” duty of care owed by schools can be derived from the decision of Spencer J in Pook v Rossall School  EWHC 522 (QB):-
“Such an enhanced duty does not oblige a school to reduce risk to the lowest level reasonably practicable. There is a broad spectrum of risk. There are some risks which no reasonable teacher would allow a pupil to encounter (such as running in corridors between classes) and some risks which it will almost always be reasonable to allow a pupil to run (such as the risk arising from contact sports). In between are situations which allow for a measure of discretion and judgment on the part of the teacher and the court will be slow to condemn a decision as negligent and to substitute its own judgment for that of the teacher where the latter can be expected to have knowledge of the school; the environment; the particular children in their charge; and experience.”
Facts of the case
BLM, instructed by Zurich Insurance on behalf of the defendant school, successfully defended a claim brought by a sixth-form pupil, who was injured during an after-school netball club at the school. 1 Chancery Lane Chambers represented the defendant in a virtual trial before HHJ Coe QC at Nottingham County Court.
The accident occurred during the warm up session at the very beginning of the netball club. Many of the pupils were still getting changed and were not yet on the court. The pupils who had got changed were spread out across the adjacent netball courts and were passing balls between themselves. This was a ‘static-passing’ exercise, with limited movement.
One of the sixth formers in the claimant’s group threw her a high ball, which went over her head. The claimant turned and ran to retrieve it. As she ran, she saw out of the corner of her eye, a younger pupil run onto her court, also pursuing a ball. Conscious of the fact there was a size discrepancy between her and the younger pupil, the claimant turned away instinctively but twisted her knee in the process and fell to the floor, sustaining a serious, permanent knee injury.
The three teachers present, providing supervision, were stood together in a group near the centre of the three courts in operation and did not see the incident. The claimant said in evidence that the incident took place between 2 and 4 seconds but less than 5 seconds.
Risk management: what is adequate supervision?
The claimant alleged there was a failure properly to supervise the activity and to notice that a pupil was retrieving an errant ball; a failure to blow a whistle and/or stop the pupil retrieving the errant ball; and a failure to “segregate” the netball courts, so that younger pupils were not on courts next to older pupils.
HHJ Coe QC accepted the standard of supervision must be assessed by reference to the level of risk which can reasonably be foreseen. The foreseeable risk of occasional minor injuries does not necessitate a higher standard of care simply because a more serious, and highly unusual, injury has occurred on this one occasion. It was accepted that there had been no similar incidents either before or since the incident in question.
Furthermore, it was accepted, relying on the judgment of Auld LJ in Chittock v Woodbridge Schools  PIQR P6:
“Where there are a number of options for the teacher as to the manner in which he might discharge that duty, he is not negligent if he chooses one which, exercising the Bolam test, would be within a reasonable range of options for a reasonable teacher exercising that duty of care in the circumstances”.
It was held that the risk of injury during a warm up was entirely different to that within a game situation, when a whistle would be blown if a ball escaped onto an adjacent court. In a game, pupils are moving at speed in a competitive environment, whilst focussed on the ball. In the static passing section of the warm-up, pupils were not moving at speed and the risk of injury was of a very low order.
The supervision provided by the teachers was reasonable. It was an ordinary part of any ball sport that pupils might fail to catch or control balls and have to go to retrieve them. By the time the pupils reached secondary school, they had been taught the national PE curriculum for six years, which includes an emphasis on spatial awareness and space management. These high school students could reasonably be entrusted to fetch errant balls whilst other pupils were standing in groups, passing between themselves.
To expect a whistle to be blown in a warm-up every time a ball is dropped would be unrealistic. Even had a teacher seen the incident unfold, they would not have blown a whistle because it is expected pupils will go to retrieve balls.
Court’s findings: no breach of duty
It was held there was no breach of duty to fail to see something which happened very quickly; and even if a teacher had seen the incident unfold, there was no breach of duty not to appreciate what might happen or what did happen. Accordingly, there was no breach of duty not to blow the whistle.
Nevertheless, it was held the case would fail on causation in any event, as the incident occurred in under five seconds. The teachers would have had to see what was developing; to have concluded it was sufficiently serious to warrant blowing a whistle in the static passing warm up; and for both the younger pupil and the claimant to have stopped altogether (without injury).
It is important that children are able to develop and learn individual responsibility at school without the risk of over-supervision; and that teachers are able to use their discretion and professional judgment in the exercise of that supervision.
This decision is further evidence that a court will be slow to substitute its judgment for that of a teacher, exercising their own professional judgment in circumstances where they have experience of the school, the environment and the particular children in their charge.
Tracey Pike, Head of Large Loss Injury, Zurich Insurance said: "We are pleased with the outcome of this matter as a negative judgment would have called into question the ability to carry out certain forms of physical education in schools.”