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10th June 2016

Is your school fulfilling its duties to trespassers?

As institutions with often extensive buildings and grounds, schools can be attractive places for individuals who are not authorised to be on the premises.

This may be youngsters wanting somewhere to kick a ball around or those who are intent on more hazardous or malevolent activities.

As senior leadership teams and governors will, or should, be aware, duties are owed to individuals present on school premises, even if they are not welcome. A recent High Court decision (Buckett v Staffordshire County Council, case no 3SO90263) has highlighted the need for schools to be able to show that they have taken steps to discharges those duties. Staffordshire County Council faced a claim by a young man who had been injured when, while trespassing with a group of other youths on the grounds of Clayton Hall Business & Language College in May 2010, he fell through a skylight having climbed onto certain roofs of the school buildings. In the course of falling through the skylight, the claimant suffered a very severe head injury.

The claimant sued the Council, which was responsible for the school, claiming that it had acted negligently and failed in its statutory duty to him as a trespasser under the Occupiers’ Liability Act 1984. Under that Act, a duty can be owed by an occupier of premises to a trespasser, where certain conditions are satisfied, in respect of “any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them”. In the event, the case turned on the question of whether the claimant’s injuries had been sustained due to such a danger.

The judge’s findings of fact included the following:

  • The school staff should have known that it was very likely that youths, outside school time, would gain access to and trespass on the school grounds.
  • It was foreseeable that trespassers would gain access to the position on the roof from which the claimant had jumped onto the skylight.
  • It was more likely than not the claimant jumped down on the skylight, thinking it would hold his weight and not with the intention of breaking it.
  • The system through the school committee of reviewing trespass and the security issues raised thereby was generally poor, given almost no mention was made in the minutes of such meetings of trespass and trespass related issues having been discussed.
  • The system of risk assessment for work activities done on the roof areas was poor. The fact that the person responsible for health and safety at the school filled out a risk assessment incorrectly raised serious issue about her training for the task.
  • The school ought to have risk assessed the likelihood of youths gaining access to the flat roofs.
  • The skylights of themselves were in no sense defective or in need of repair. The roof was not in itself ‘dangerous’.
  • The injuries suffered by the claimant arose directly from his own actions. The Council did not owe him any duty to control this activity as a trespasser, even though his presence in the vicinity of the skylight ought reasonably to have been foreseen.

On almost all of the key factual issues, the judge decided in favour of the claimant. However, the court did not accept that the skylights and the skylight concerned in particular, in the context of its structure, makeup and location on the roof, was a “danger due to the state of the premises or things done or omitted to be done on them”. This meant that the claim failed because the duty under the Occupiers’ Liability Act 1984 was not engaged.

Whether a duty arises under the Act is a question which depends on the circumstances of any particular case. It is not difficult to see how in not entirely different circumstances a duty could have been engaged because of the state of school buildings. Would your school be in a position to show that it had discharged its duties in such circumstances?

Given the judge’s findings of fact, this decision serves as an illustration of the importance for any school, in the light of such duties possibly arising, to carry out proper risk assessments in the context of the circumstances in which the school operates, grading those risks and putting in place measures to address them. This will involve assessing such matters as the school’s location, its amenities, the nature and state of its buildings, the propensity of instances of trespassing (in and outside of school hours), the supervision of visitors to school premises (including during any lettings of buildings by outside parties) etc. No doubt this process will need to involve the school’s insurers to whom the school would turn in the event of an incident of the type which tragically occurred in this case.

See our Education services page for more information or click here to email Stephen Cole.

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