A law lesson for teachers

So, what would get more than 300 school principals, teachers and members of the boards of management out of their beds and into Trinity College, Dublin, by 9 a.m. on a Saturday morning? The fear of litigation and the promise of an alleviation of risk - that's what.

A recent conference, Suing Primary Schools: Strategies for Managers and Principals to Reduce the Risk of Liability may have somewhat reassured the 308 worried parties who travelled from around Ireland to attend.

Mrs Deborah Murphy, acting principal of St Joseph's primary school in New Ross, Co Wexford, says that, although she had no experience of the area, litigation was always on people's minds. "We are very aware that litigation is high," she says. "When we're considering an action we always consider what the legal obligations are and what opportunities it might afford people to sue."

John Beggan, chairman of the board of management of Scoil Naomh Padraig in Ballyroan, Dublin, forsook the golf course to be at the lecture theatre in TCD. Schools must be aware of new legislation, he says, and they have to introduce policies to ensure that they have taken all possible care.

Four of the teachers in a six-teacher school in Co Westmeath attended - the other two would have come too, but they had to go the school's confirmation ceremony. They came because they are "very concerned, there's a lot of very grey areas which are open to abuse." Nothing has happened to date in their school but "there is a fear of the unknown . . .unintentionally, you could do a lot of damage."

William Binchy, regius professor of law at TCD, takes an entirely pragmatic approach to supervising primary school pupils and the duty of care required by the courts. His overall message is encouraging but he first outlines some harsh facts.

"Fact number one is that judges, being humane, tend to sympathise with a young child who is injured," he told delegates. "They are, of course, perfectly aware that the school is insured. Some judges have this tendency more than others. The lawyers who practise before them know their propensities. Cases will often be settled for a relatively high sum at the door of the court once it is known which judge is inside the door."

Unfortunately, fact number two is that litigation is expensive. Insurance companies may have to choose between fighting a claim which will cost several thousand pounds which can't be recovered even if the case is successfully defended and settling out of court for a lesser sum. Binchy acknowledges that settlements made over the heads of school personnel can be highly damaging to morale.

The good news is that, if a school has "sensible management policies, if it has a transparent safety system in place, if it has a sound practice of communication with pupils and parents and the allocation of responsibilities is clear, then there is an excellent prospect that it can successfully defend litigation," says Binchy. Schools tend to get off reasonably lightly from negligence litigation, in comparison to other categories of defendant such as car drivers or employers.

In deciding whether conduct is negligent, courts have regard to four factors: the likelihood that the conduct would cause injury; the gravity of the threatened injury; the social usefulness of the conduct; and the social or economic cost of preventing an injury.

One area of particular interest to schools is supervision in the playground. Some degree of supervision is clearly necessary but Binchy says the courts have "been anxious to make it plain that too high a standard of care will not be demanded. As O Dalaigh said in Lennon v McCarthy (unreported), Supreme Court, 13 July 1966, `When normally healthy children are in the playground it is not necessary that they are under constant supervision."

Although cases tend to run in favour of the schools, Binchy draws attention to a worrying case which runs against the trend - Mapp v Gilhooley, High Court, 7 November 1989 - where the judge imposed liability on a school manager where the plaintiff, aged five, was injured in the school playground. The child was injured in a game of trains and the judge said that the "crucial aspect" of the case was whether the game had been in progress long enough for the supervisors to have time to stop it before the accident occurred.

In this case, the Supreme Court directed a new trial because the plaintiff's unsworn testimony had been admitted and the case was eventually dismissed.

Another source of anxiety is supervision before and after school hours. Looking back at previous court decisions, Binchy said that there is no specific moment at which the duty of care starts or ends but he thinks that the view of the Department of Education and Science that supervision should be provided for at least 20 minutes before school begins is likely to be reflected in any court decision.

He emphasised that there may be cases where the duty to supervise goes well beyond 20 minutes. Written notes of acceptance by parents that pupils are not to arrive before a certain time are good management practice, but Binchy warned that schools should not regard them as magic exemptions from prospective liability. They can be overtaken by events."

School tours are another perennial source of anxiety for teachers. Binchy posed the question as to what the law says about school trips in Ireland and abroad. "The answer is the same as for all other aspects of supervision - the school management must take reasonable care for the safety of the pupils."

The first point that must stressed is planning - "reasonable care should be exercised in the nature of the trip chosen, the venue, the means of transportation, and the demands on the physical resources of children, having regard to their age and capacity, and the dangers to which they may be exposed."

The other area of potential liability is inadequate supervision. Binchy said that he would have "some doubts about the wisdom of using parents as supervisors on trips. They are not part of the school management system, nor directly subject to its organisational command structure. It would be imprudent to assume that all parents are necessarily effective and reasonable supervisors."

When it comes to reducing the risk of liability for schools there are no certain answers, says Binchy. The services of anyone purporting to offer such answers could well be dispensed with, he adds.

On a more positive note, Binchy says: "It is quite hard to sue a school successfully. Good management practices will be rewarded. There is nothing safe in this life but, by and large, schools have nothing to worry about if they can justify the decisions they have made."