Christopher Brown V. North Lanarkshire Council
| Jurisdiction | Scotland |
| Judge | Lady Dorrian |
| Neutral Citation | [2010] CSOH 156 |
| Court | Court of Session |
| Docket Number | A437/05 |
| Date | 23 November 2010 |
| Published date | 23 November 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 156 | |
| A437/05 | OPINION OF LADY DORRIAN in the cause CHRISTOPHER BROWN Pursuer; against NORTH LANARKSHIRE COUNCIL Defender: ________________ |
Pursuer: M Maguire QC; E McKenzie; Balfour + Manson LLP
Defender: D.I. McKay QC; R Milligan QC; Simpson & Marwick
23 November 2010
Background
[1] The pursuer is the father and guardian of Thomas Brown, born 13 August 1992. On 3 April 2003 Thomas was a pupil at Ladywell school, Motherwell. On that day he was engaged with 2 other pupils in painting a picture on a large sheet of paper on the floor of a classroom. The children were working in an open plan class room under the control of two teachers, Mrs Stirrat and Mrs Holmes. Whilst Thomas was engaged in his task, one of the other children, Stephanie, bumped into him, causing him to fall onto the paintbrush of the third, Craig. The children had been provided with long thin paintbrushes. The end of the brush penetrated Thomas's left eye and brain with catastrophic results. The case came before me for a proof on liability only.
The pleadings
[2] The circumstances of the accident are set out as noted above. In addition it is averred that Thomas and Craig were painting on the floor on one sheet of paper, that Stephanie was painting on another sheet close to Thomas with her back to him, and that Thomas was kneeling over the picture when Stephanie banged into the rear of him causing him to lose his balance and fall onto the end of Craig's brush.
[3] The pursuer avers that prior to the accident the defenders had a policy whereby pupils were not allowed to use pencils at floor level because it was dangerous; that at another school under the defenders' control this policy extended to paintbrushes and that after the accident the defenders issued a "safety flash" instructing that art work should not be carried out at floor level and that paint brush handles should be shortened, which latter measure could have been taken to prevent the accident. After the accident the defenders provided foam ends for attaching to paintbrushes and issued a revised Code of Practice in Art and Design limiting the length of paintbrush for the use of pupils within Thomas's age group and that they also banned painting at floor level. It is also averred that it was only after the accident that the defenders carried out a risk assessment of the activity whereas a reasonable education authority would have done so before.
[4] The pursuer quotes at length from a document entitled "Managing health and Safety in Schools" published in 1995 by the Education Service Advisory Committee, in agreement with the Health and Safety Executive which is said to set out good practice for managing health and safety in schools. The pursuer also refers to documents issued to head teachers by the defenders in 1996 entitled "General Statement of Safety Policy by the Director of Education" (MSF/3), "Application of the Health and Safety at Work Act to the Education Service" (MSF/4) and "Responsibility for Health, Safety and welfare in the Education Service" (MSF/5), quoting at length from the latter document, in relation to the responsibilities respectively of the department, the head teacher and other teaching staff. It is averred that the Head Teacher and supervising teachers were provided with no training in health and safety, including the carrying out of risk assessments, were unaware of the defenders safety policy and failed to identify that the pupils were not provided with safe equipment or safe conditions to work in. It is also averred that:
"The risks to pupils of using long, thin pointed paintbrushes at floor level in close proximity to each other were not identified by the teachers, headmaster or by the defenders. In these circumstances it is believed and averred that the defenders did not adequately implement, monitor, enforce or review their health and safety policy."
[5] Under reference to Regulation 3 of the Management of Health and Safety at Work Regulations 1999 ("The Management Regulations"), the pursuer suggests that had the defenders assessed the risks of the activity involved they would or ought to have concluded that the activity was potentially dangerous, with a significant risk of a pupil being injured by falling onto the end of a pointed paintbrush, and that such an injury was particularly likely when pupils were working on the floor with their faces in close proximity to the end of the paintbrush. Even if the defenders and their employees did not have a duty to carry out a formal risk assessment of the activity, they had a duty to apply their minds to the hazards and risk of injury that arose from pupils using long thin paintbrushes with pointed ends at floor level. Had they done so they would have concluded that pupils should not do so, particularly in close proximity, in an unstable position with their backs to each other.
[6] The defenders admit that Thomas was kneeling, that another child banged into the rear of him, causing him to lose his balance and fall onto the brush of a third. They aver that the conclusion of the accident report states that "The practice of school children using the floor for art activities has been carried out for many years. Likewise, the type of brush used by the child has also been used within schools for many years. It was not foreseeable that an injury of this magnitude could occur." At the time of the accident there were around half the normal number of pupils in the class and that they were adequately supervised, working on large sheets of paper which could not easily have been accommodated on desks. There is no report of any similar accident having occurred in any school in the UK either before or since. At the time of the accident it was common around the world for children to work with pens, pencils and paintbrushes at floor level, and the defenders' policy of not using pencils at floor level was only introduced because of the accident. Before that, no risk assessment would have identified any realistic risk of the accident, which was not reasonably foreseeable, occurring. The defenders were not aware of any local authority that carried out risk assessments in relation to the use of paintbrushes in classrooms at the time of the accident and aver that the dangers of using a paintbrush are too remote to be covered by risk assessments.
[7] The pursuer avers breaches of duty by the defenders themselves and further by the head teacher and those supervising the class at the time. Various breaches of duty, by themselves or through the head teacher, are averred against the defenders, including a duty to implement, monitor, enforce and review their health and safety policy; to provide safe equipment and safe working conditions; and to ensure that employees received adequate health and safety training, in particular, in undertaking risk assessments.
[8] It is averred that the teachers had a duty to assess the risks of the activity being undertaken and that the risk of serious injury from using the brush in question was or ought to have been obvious. Had a risk assessment been carried out the accident would not have happened. There was a duty to see that pupils were provided with shorter, thicker brushes with rounded ends or to carry out the activity in a different manner.
[9] The defenders admit that certain duties were incumbent upon them and the teaching staff under explanation that they fulfilled these duties. They aver that any duty to carry out a risk assessment arose only in the contest of the employer/employee relationship and that in any event no assessment would have identified any control measure. The teachers were following normal practice at the material time.
Circumstances of the accident
[10] Some difficulties arose in the course of the proof in relation to the exact circumstances of the accident. In the pleadings it is averred and admitted that while Thomas was kneeling over the picture another pupil banged into the rear of him causing him to lose his balance and fall onto the end of a third pupil's brush. At the outset of the proof I was advised that the parties had entered into a Joint Minute, paragraph 1 of which reads as follows:
"That on 3rd April 2003 an accident occurred to Thomas Brown in the manner narrated in paragraph 3 of the defenders' (undated) accident investigation report (production 6/7), with the position of Thomas at the time of the accident being shown by the "red feet" in the photographs attached to the report."
Paragraph 3 of the accident report reads as follows:
"Thomas Brown, along with two other children, Stephanie and Craig, were painting at floor level using long-handled artist brushes - see photographs attached. For clarification of position, Thomas is identified by "red feet", Stephanie by "blue feet" and Craig by "yellow feet". The children were working in an open area of the classroom, away from the other children, who were using the desks. Stephanie was working alone with her back to Thomas, who was working on the same drawing as Craig. It appears, as Stephanie stood up, she backed into Tom, who was crouching. Tom toppled over onto his left side and fell onto the brush being used in Craig's right hand. The brush entered Tom's left eye causing injury."
[11] The report is accompanied by four photographs, three of which bear to be a reconstruction of the room on the day in question. Two of these show 2 sets of paper a short distance apart and at an angle to each other of almost 90 degrees. According to the placement of the coloured "feet" on the paper, Tom would have been facing the paper he was working on, positioned at one of the shorter sides of the paper, which constituted a large oblong. Craig was immediately to his left, also facing the paper but round the corner of it, on the long side of the paper. From the position Tom was in, the other sheet of paper was positioned a short distance off, leading away...
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Jb Db And Jwdwb V. The Authority Reporter For Edinburgh
...3rd ed. para.16.28; The Scottish Marine Insurance Company of Glasgow v Turner (1853) 1 Macq 334; Brown v North Lanarkshire Council [2010] CSOH 156). Miss Guinnane invited us to answer questions 1 and 2 and 4 to 7 inclusive in the affirmative and question 3 in the negative and to remit the c......