A recent report that school buildings constructed by Western Building Services in Ireland have been forced to close due to maintenance and safety concerns has put back on the agenda the issue of who is responsible for any injuries caused by poorly maintained school buildings.
There are two areas of litigation that may be of concern. In terms of civil litigation there is the threat of being sued for damages as a result of any loss caused by an injury. In criminal litigation there is the risk of a school, or indeed school managers being prosecuted for breaches of health and safety regulations and law.
The Occupiers Liability Act 1957 sets out that the occupiers of property have a duty to all visitors (including to a limited extent trespassers). This essentially amounts to a duty to take such care as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe in using the premises for the purposes for which s/he is invited or permitted by the occupier to be there. In the case of Academies and private schools the school will be responsible as the occupier of the premises. In local authority controlled schools it will be the local authority that is responsible.
To what extent though can one share liability with the builder of premises? The answer is that it may be possible depending on the cause of the loss and also the age of the premises. Where the property is new and injury is caused, then the greater the likelihood of a successful claim against the builder. If the property is of some age and the issue is more one of poor maintenance than poor construction then the school is more likely to be liable. In most cases civil litigation costs will be met by insurers although that is only part of the story. Fatal and traumatic injury cases have a human cost which goes beyond the injured parties but also affect staff and Governors.
It is essential to ensure that new build property is fit for purpose when signed off. That may mean going beyond accepting that local authority planners are satisfied with the buildings: as in the Western Property case. Having one’s own Surveyor’s assessment in the event of their being doubts as to the property’s fitness may also be advisable in some cases. There are often pressures with school builds that property needs to be completed quickly or by a certain date. Again care needs to be taken that the property is fit for handover when complete. The most effective leverage may be holding back final payment until satisfaction is assured.
One cannot insure against criminal litigation costs, although the legal costs of representation can be covered. The risks to schools of prosecution are much more damaging than civil litigation. The penalties are now very high such that in theory at least a school could be bankrupted. Prosecutions can follow not only in relation to accidents as a result of the condition of buildings but also resulting from ongoing management issues such as a failure to manage asbestos. A number of recent news stories have made light of the funding issues that schools now have in terms of making their buildings safe. In extreme cases it may regrettably be the case that schools have no option but to close parts of a school. It is the responsibility of heads, principals and Governors to ensure that pupils and other visitors to the school are safe.
If you have concerns over issues relating to funding necessary building work and maintenance, or safety concerns then please call us.