I didn't jump, Miss!

 

CM (a minor) v Caerphilly County Borough Council [2020]


Claims involving injuries suffered by children at school, particularly those in primary school, are notoriously difficult to defend. However, this case demonstrates that a system of good record keeping, together with comprehensive Witness Statements, can be sufficient to overcome a claim where the evidence from the Claimant does not quite add up.

Background

 

The Claimant was aged 6 and a pupil at a local Primary School. On 25 May 2017, he was playing in the school yard alongside other pupils. The Claimant’s case was that he climbed up onto a climbing frame and fell, suffering fractures of the first and second metatarsals of his right foot.

The allegations made on the Claimant’s behalf were extensive. The claim was brought under section 2 of the Occupiers’ Liability Act 1957 and it was alleged the Local Authority knew the Claimant had mobility issues prior to his accident and should not have left him alone (having suffered several injuries during the prior 12 months), should have properly and constantly supervised the Claimant and should not have allowed him to climb upon apparatus from which it was likely he would  fall. It was also alleged that there was no proper and safe system for playtime activities an the Local Authority should have conducted a pupil specific risk assessment for the Claimant.

Investigation

 

Due to the wide ranging allegations, it was necessary to attend the school to interview all relevant personnel and inspect the climbing frame in question. The headteacher confirmed that the Claimant transferred to the school from another Primary School in February 2016. The Application for School Transfer did not contain a Statement of Special Educational Needs and no medical needs or issues were disclosed on the transfer forms submitted to the Local Authority. The Claimant settled in well at the new Primary School and his Annual Progress Report (2016) noted he was a very polite and happy boy who had made some close friendships since joining the school.
 

During the summer term of 2016, the Claimant’s mother attended the school with various images of boxing and cycling helmets. She said her son had been falling over a lot and asked the school to select a helmet for him to wear during school hours. The school requested supporting medical documentation because they were not aware of any Special Educational Needs or mobility issues which necessitated a helmet to be worn. The school were not prepared to allow him to do so, which would set him apart from other pupils, without any supporting medical evidence. A referral was made for the School Nursing Team to meet with the Claimant’s parents to discuss their concerns, but they did not engage with the school nurse.

In September 2016, the Claimant’s parents notified the school that their son had been receiving specialist training support and requested this at the Primary School. The headteacher contacted the Special Teacher Advisor Support Team, who confirmed they had no record of any specialist support being provided. Towards the end of 2016, the Claimant’s parents continued to express concerns about the Claimant falling over. The school had their own concerns about the Claimant’s fine motor pencil grip and referred him to ISCAN – the Integrated Service for Children with Additional Needs (ISCAN) – to assess his fine and gross motor schools. The Claimant underwent a paediatric assessment on 16 March 2017, which found he had a normal heel / toe gait pattern. There was, however, evidence of reduced single leg balance and difficulty hopping. The Claimant also had reduced core control. Physiotherapy was arranged, but the Claimant did not attend a session and so was discharged from the service.

The school had carried out a risk assessment in relation to playtime activities, which was revised in January 2017. This considered the risks associated with break-time activities and specifically supervision. The assessment required an adequate level of supervision to be available and recommended a minimum staff:pupil ratio of 1:30. The Claimant’s school file contained 9 accident forms, completed between February 2016 and the accident date. The Claimant had 6 accidents during the summer term of 2016 and 3 other accidents between September 2016 and May 2017 (not including the index accident). The headteacher confirmed that infants tend to fall over more than juniors and she did not consider 9 accidents over 12 months to be unusual for a child of the Claimant’s age. The headteacher also noted they all occurred while the Claimant was playing with friends and did not involve the climbing frame or other playground equipment.

The accident

 

On 25 May 2017, it was the Claimant’s class who were using the large playground equipment. One member of the lunchtime staff would stand adjacent to the climbing frame while children used it. The supervisor confirmed the climbing frame as the Claimant’s chosen piece of equipment (when permitted) and he had used it on numerous occasions prior to 25 May 2017. That day, over a third of pupils were away on the school’s annual residential trip. There were 68 pupils in the playground with 4 supervisors, with a staff:pupil ration of 1:17. That ratio was considerably better than the recommended minimum and the headteacher confirmed it was probably the best ratio possible given the number of pupils offsite.

The lunchtime supervisor saw the Claimant jump from the climbing frame and told him it was dangerous and he might hurt himself. He said “Okay Miss, I won’t do it again”. Within seconds of getting back on the climbing frame, he jumped again. In accordance with the school’s policy of ‘three strikes and you’re out’ (which applies to all activities), the supervisor told the Claimant it was his last chance and if he jumped again he would no longer be able to use the climbing frame. The Claimant replied “Okay Miss”.

The supervisor watched the Claimant get back on and continue to play. Another pupil called the supervisor over. She was only a couple of yards away and had her back to the climbing frame. The supervisor turned around and saw the Claimant crying on the floor. She asked what he had done and he replied “I didn’t jump, Miss”. The Claimant said he had hurt his foot and was taken to the first aid room. His parents collected him and he attended hospital the next day.

The supervisor’s evidence was that although she was sorry the Claimant had suffered an injury, she would not have done anything differently. The Claimant had been warned twice about jumping from the climbing frame and had never disobeyed two warnings. She thought he would not want to be taken off the climbing frame, which was his favourite playtime activity. The supervisor also knew the climbing frame was low to the ground, so it was a very small distance to jump. The base beneath it was padded, providing a softer landing. The Claimant had used the climbing frame regularly and the supervisor considered him a much better climber than many of his classmates.

Post-accident events

 

In July 2017, the Claimant’s father provided the school with some correspondence from medical professionals. He requested a safety plan, asking the school to cater for the Claimant’s needs and provide constant supervision during physical activities. The Claimant’s parents were asked to attend a meeting with the Local Authority’s Health & Safety Manager (for schools), where a Health and Safety Pupil Risk Assessment was completed. This documented their comments over the Claimant’s alleged mobility issues, notably hypermobility in all joints and dyspraxia, together with the engagement of a private consultant in 2014 who diagnosed hyperflexibility. A GP letter made reference to possible dyspraxia and it was agreed that the Claimant’s parents would provide the risk assessment to their GP and seek an updated diagnosis and advice regarding any specific support. The GP stated that the Claimant should not be prevented from climbing activities, but should be monitored. Physiotherapy identified no physical limitations to the Claimant participating in all gym based activities and ISCAN confirmed he had undergone a comprehensive assessment and did not meet the criteria for a diagnosis.

Witness evidence

 

Witness Statements were exchanged. The Local Authority adduced evidence from the headteacher, the lunchtime supervisors and a first aider. The Witness Statement from the headteacher confirmed that the school does not have the capacity to increase the level of supervision unless there is a medical statement of need which is supported by additional hours. She confirmed the Claimant had been referred for assessments and each time he was within the normal boundaries.

The Claimant’s witness evidence consisted of Witness Statements from the Claimant’s mother and father. Notably, the Witness Statement of the Claimant’s father said that he had supplied documentation/letters from medical professionals to the school in advance of the Claimant’s accident alleging “The Primary School were clearly aware of [the Claimant’s] problems before his accident”. The headteacher disputed the contents of this Witness Statement and we prepared a Supplemental Witness Statement to respond and correct the factual inaccuracies.

Application and discontiunuance

 

The Claimant’s solicitors objected to the Defendant being permitted to rely on the headteacher’s Supplemental Witness Statement. We made an Application to the Court and outlined how the Claimant’s father’s Witness Statement contained evidence which was based on allegations that had not been pleaded in the Particulars of Claim or previously expressed in correspondence on the Claimant’s behalf. Specifically, he sought to advance a case that medical documentation had been provided to the school prior to the Claimant’s accident and the Defendant should be given the opportunity to respond to such an allegation. Although the Claimant had alleged the Local Authority were aware of the Claimant’s mobility issues, that allegation referred to previous accidents and not the provision of any medical documentation.

 

Shortly after making the Application, the Claimant served a Notice of Discontinuance, approximately one month before the Trial listed for 14 May 2020.

Comment

Although this was a Fast Track claim, there were a number of issues to consider from a liability perspective and evidence to adduce in Witness Statements. The headteacher felt strongly about the claim and her Supplemental Witness Statement cast doubt upon large sections of the Claimant’s father’s evidence. We did not want the headteacher’s evidence to be confined to her original Witness Statement and although we do not know the reasons behind the discontinuance, we anticipate the Application forced the Claimant’s hand, resulting in an excellent outcome for the headteacher, the school and the Local Authority.

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