Scottish Court of Session Decisions

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 3^rd 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 to his right, with the shorter side nearest to his right hand side. Stephanie was working on that paper, facing it at the short side nearest to Tom. The effect was that Tom and Stephanie were almost at right angles to each other, Tom's right side to Stephanie's left side.

[12] In normal circumstances, the agreement in the Joint Minute would have been conclusive of the material contained within it, and no evidence on that issue would have been heard. However, the pursuer led the two teachers, Mrs Stirrat and Mrs Holmes, who had been in the class on the day in question, and it would have been impossible for their evidence about the background circumstances, the set-up of the task in question and the factors, if any, taken into account in preparing it, without touching on the matters contained in the Joint Minute. Unfortunately, but perhaps all too predictably, this resulted in certain discrepancies between the evidence and the terms of the Joint Minute. The first was over the question of whether Thomas had been crouching or whether he had been kneeling, Mrs Stirrat's evidence being that all the children were kneeling. Standing the terms of the admitted averment that he was kneeling, I would have felt perfectly entitled to interpret the Joint Minute accordingly and proceed on the basis of the admission and the evidence, which I accepted, that he was in fact kneeling, and I propose to do so. The remaining discrepancies are more difficult. The children were preparing scenery for the school show and the evidence of Mrs Stirrat was that four sheets of A1 paper had been taped together to make one very large sheet. In examination in chief she was shown the photographs attached to the accident report and asked "you would see that Stephanie had her back to Thomas?". She said that her recollection was that Stephanie was actually closer, they were working on the one piece of paper and she was adjacent to Thomas. Stephanie was extremely upset after and said she had leant back and had accidentally bumped Thomas. She did not recollect Stephanie saying that she did not know that Thomas was behind her. The matter was pursued further, without objection, in cross examination, when she was asked whether the photograph showed Stephanie's approximate position. Her answer was "That is absolutely not my recollection of what happened. My recollection is that all three were on one piece of paper, Stephanie and Thomas were side by side and Craig was round the corner at yellow. My recollection is that they were side by side on the same piece of paper. That is what was written down that day, I had to write exactly what happened." She had not actually seen the accident happen. The evidence of both teachers was that there were about 20-24 children in the class that day, that Mrs Stirrat was directly engaged in supervising the three children on the floor, whilst Mrs Holmes was supervising the remaining children who were engaged in painting work at desks at the other end of the room. Mrs Holmes did not see the accident happen but had been involved in setting up the task. Her evidence also was that they had prepared one large sheet of paper for the children to work on by taping together four A1 sheets. She said "Thomas was painting scenery with two others, Craig and Stephanie. No others were working on that piece of scenery." As to the positions of the children, she had not seen this. She thought they were side by side from what people said afterwards. Initially she could not remember Stephanie saying anything about Thomas's position but agreed she had told the police "Stephanie told me she had stood up and stepped back not knowing that Thomas was there", which was more likely accurately to record what she said at the time. In cross examination she said that it was impossible that Stephanie had not known that Thomas was there. The discrepancies between the evidence and the Joint Minute were potentially important, because amongst the factors which were said to be relevant to the safety or otherwise of the task were the stability of the children - whether crouching or kneeling; their proximity; and whether they had their backs to one another.

[13] Where evidence contrary to a Joint Minute comes out by inadvertence and is not pursued, I would in general feel that the appropriate course would be to ignore it and to proceed on the basis of the Joint Minute. There might be many reasons why some discrepancy might arise in evidence by inadvertence and why parties might quite rightly have decided not to rely on that piece of evidence. However, that is not the case here. Even if the matter came out through inadvertence in the examination in chief of Mrs Stirrat it was pursued in cross-examination without objection. Apart from the children, Mrs Stirrat and Mrs Holmes were the only two witnesses in the room. It was not suggested to either of them that they were mistaken in their recollection (other than in relation to the comment made by Stephanie to Mrs Holmes), no evidence was led from the compiler(s) of the accident report and it was not suggested to either of the witnesses that they had, for example, given a different statement to the compiler of the report or written a different account on the day in question. The agreement in the Joint Minute is not on some incidental matter: it is part of the basis on which the court is being asked to determine the issue of liability. Where evidence on the matter has been led in the manner and to the extent done in this case, the court cannot ignore that evidence and proceed merely on the basis of a Joint Minute agreed by the parties. In such a situation in my view the whole matter is at large for the court, and the averments and the Joint Minute are merely adminicles to be taken into account along with all the evidence in assisting the court to reach a conclusion on the facts. I should emphasise that during submissions this was effectively the approach which I was invited to take by both counsel. Counsel for the pursuer submitted that all these matters were there to be taken into account. Counsel for the defenders, under reference to Turner v Lothian Health Board 1996 SCLR 1063, submitted that the joint minute should not be given any more weight than the admitted pleadings or unchallenged evidence of the witnesses who were there at the time.

[14] Notwithstanding the evidence which the two teachers had given, I was invited by senior counsel for the pursuer to accept that the accident had in fact happened in the manner set out in the Joint Minute. It was submitted that the admitted averment that Thomas was kneeling was superseded by the fuller agreement about how the accident had happened as contained in the accident report. It was submitted that the account in the accident report is more likely to be correct than the account given by Mrs Stirrat for the following reasons:

(1) that the accident report is more contemporaneous and bears to have been compiled from sources which included Mrs Stirrat;

(2) that had all three children been painting on the one sheet of paper it was unlikely that the reconstruction photographs would have shown two pieces of paper or that the investigators would have reconstructed the accident in that manner without having a proper basis for doing so; and

(3) it was accepted that Stephanie had referred to a backwards movement. Mrs Stirrat said that the child had reported that she had leant back and had accidentally bumped Thomas. Mrs Holmes told the police "Stephanie told me she had stood up and stepped back not knowing that Thomas was there". This was more consistent with the accident having occurred as suggested in the accident report and with the children having been positioned "back to back".

[15] Counsel for the defenders submitted that I should accept the evidence of Mrs Stirrat, as the only witness who could speak to the relative positions of the children, their stance and the positioning of the paper. He also attempted to persuade me that the Joint Minute sought to do no more than record the general manner in which the accident occurred rather than the precise circumstances, but standing the reference in paragraph 3 of the accident report also to the photographs, I cannot accept that submission.

[16] The paragraph of the accident report which finds its way into the Joint Minute is described as a "brief summary" of the accident. It therefore represents an interpretation by the compilers of the information which they had gathered. The compilers of the report, two health and safety officers in the employment of the defenders, were not called to give evidence. The report records that information was obtained from the teachers in question, the acting head and three other members of the defenders' education department. The nature of the information obtained is not identified, whether it was verbal or in writing (although Mrs Stirrat made reference to having to write something down at the time) nor when it was obtained. The investigation took place between 4 April and 20 July 2003. No information is given as to when the photographs were taken or who was involved in the reconstruction. In these circumstances it is really rather difficult to determine what reliance can be placed on the accident report compared to the current recollection of the teachers. I note, for example, that there is a clear inaccuracy in the report at paragraph 5.3 which records the following summary: "Children were working in groups on the floor. L Gillies (Mrs Holmes), teacher, was working with another group approximately 4 metres away from the accident. L Stirrat, (teacher), was working with another group approximately 6 metres from the accident." According to the evidence, which I accepted, this is patently inaccurate. The three children painting on the floor were being supervised by Mrs Stirrat who was not involved in supervising any other children. All the remaining children were being supervised by Mrs Holmes. Contrary to the terms of this paragraph Mrs Stirrat was closer to the accident than Mrs Holmes who was at the other end of the room. Mrs Stirrat said that at the time of the accident she was present at a desk beside the children who were painting on the floor but that Mrs Holmes was "at another part of the base" i.e. at another area of the open plan room in which they were all working. Mrs Holmes gave evidence that at the time of the accident she was at the opposite side of the base from Mrs Holmes. I accepted the evidence of the teachers, which was not in any event challenged. Such an inaccuracy about the relative positions of the two teachers and the nature of the tasks they were supervising gives me concern about how far I can accept the accuracy of the "brief summary" of the accident which is contained in paragraph 3. Mrs Stirrat gave very clear evidence that her recollection was that the children were working at the one piece of paper which had been prepared by taping together four pieces of A1 paper. Stephanie was adjacent to Thomas and Craig was round the corner. At a later part of her evidence she again was very clear that the children were working on one item together. She said "This piece of work was joined together. It was a particularly big piece for around the hall. It was one scene they were painting". Mrs Holmes did not see the children settle down to their task, but she was involved in planning and setting up the task and she, too, said that they were working together on one piece of paper. She said that they had pieces of scenery already drawn and laid them out for the children to paint. There were four pieces of paper struck together. The clear implication of this, and her evidence that she could not remember how many pots of paint there were but that normally if the children were working together they'd share, is that the children were all working on the one composite piece of scenery. "No others were working on that piece of scenery". Both teachers expressed the view that the paper was so big it could not easily have been worked on at the desks, and it is easier to see how this would apply to four A1 sheets taped together than to the two separate sets of paper shown in the photographs.

[17] It is true that the reported comments made by Stephanie are somewhat at odds with the layout as recollected by the teachers. However, the comments that Mrs Stirrat recalled were that "she said that she had leant back and had accidentally bumped Thomas" whereas Mrs Holmes' recollection was that "Stephanie told me she had stood up and stepped back not knowing Thomas was there" saying also that she "fell onto Thomas knocking him onto Craig's paintbrush". These of course are reports from the teachers of what they think Stephanie said. They are also the words of an 11 year old child who had just been involved in a horrific accident to one of her classmates. The accounts given by the teachers do not present a consistent picture of what Stephanie said, and whilst the words recollected by Mrs Holmes are consistent with the child being behind Thomas, those recollected by Mrs Holmes are equally consistent with the children having been side by side. In addition, her reference to not knowing Thomas was there could also be attributed to the tendency of children, mentioned by several witnesses, to concentrate on the task in hand, to be less aware of the position of others around them and to make movements without regard to others. I am satisfied from the evidence as a whole that the children were kneeling and that they were all working around the one piece of paper. On balance I am satisfied that Stephanie and Thomas were side by side, and that Craig was round the corner to Thomas's left.

Risk assessment

[18] A fundamental aspect of the pursuer's case is that the defenders were under a duty at common law to carry out a formal risk assessment of the type provided for in regulation 3 of the Management Regulations. This is clear not only from the reference to that regulation, but from the averments about the 1995 guidance document, including reference to the HSE's "Five Steps to Risk Assessment", all included in numbered paragraphs 3-6 of article 2 of condescendence. If the matter were in any doubt, paragraph 7 thereof commences with the words "In any event, even if the defenders and their employees did not have a duty to carry out a formal risk assessment of the activity being undertaken by Thomas, (which is denied) they had a duty to apply their minds to the hazards and risk of injury" from the activity in question. The pursuer's case on this point thus has two elements: a duty at common law to carry out a formal risk assessment of the kind required by regulation 3; failing which, a duty to apply their minds to the hazards and risks arising from the task in question.

[19] As already noted the pursuer's pleadings make reference to regulation 3 of the Management Regulations. Reference is also made to the 1995 guidance issued by HSE and the defenders' health and safety policy made under reference to the Health and Safety at Work Act 1974. There is an averment that the defenders and the head teacher had a duty to ensure that adequate risk assessments were carried out for activities undertaken by pupils; and that the teachers had a duty to assess the risks of the activity being undertaken by the pupils. During the proof, when Mrs Stirrat was asked the question whether she had any training in risk assessments, the defenders objected to the question and also to any line of questioning seeking to show that there was a duty on the defenders to ensure that risk assessments were carried out or to adhere to any code of practice or similar document established as guidance to the implementation of the Management Regulations. Since it was arguable that at least part of the pursuer's pleadings could have been read as meaning that it was simply part of the defenders' common law duty to consider the risk of injury to pupils, as opposed to carrying out a structured risk assessment under the regulations, I allowed the question, and the line, under reservation.

Submissions anent objection

[20] In later submissions counsel for the pursuer submitted that although a strict liability case under regulation 3 would be precluded by the regulations, nevertheless evidence about risk assessment under the regulations was relevant first, in relation to the common law case based on the defenders' failure to follow their own policy and secondly, in relation to the general duty to take reasonable care. A reasonable education authority would take steps to implement its own safety policy. In the present case that policy provides for assessment of the risk associated with all the activities of the department, with the aim of eliminating or controlling those risks, so far as reasonably practicable. It places with the head teacher responsibility for arranging for the assessment of risks identified within his/her area of control. It dictates that the risks should be eliminated or controlled insofar as reasonably practicable: this is in effect a "risk assessment"; whether one looks at the regulations or at the policy the principles are the same.

[21] In any event, evidence about regulation 3 is relevant to the duty to take reasonable care. Risk assessment was also at the time regarded as good practice in schools, as shown by the 1995 document "Managing health and Safety in Schools" which advocated risk assessment. The fact that there is no civil remedy for breach of the statutory provision itself does not preclude the court from taking this evidence into account. Counsel submitted that there was a common law duty to carry out a risk assessment. Furthermore, the question of whether an assessment has been done is relevant to the defenders' knowledge of the risk. In support of these propositions counsel referred to Griffiths v Vauxhall Motors Limited [2003] EWCA Civ 412, Robb v Salamis 2007 SC (HL) 71, Sherlock v Chester City Council [2004] EWCA Civ 201, Bailey v Command Security Services Ltd 2001 WL 1535385, Poppleton v Trs of Portsmouth Youth Activities Committee [2008]EWCA 1567 (QB), O'Halloran v CIBA Speciality Chemicals PLC 2007 Rep L. R. 32 and Logan v Strathclyde Fire Board, Lord Eassie unreported 12 January 1999.

[22] Counsel's submission was that there was an obligation to carry out a risk assessment and had that been done the risk from the paintbrush should have been identified and in particular the circumstances of its use would have identified a risk of injury. As to the cases of Malone v Metropolitan Police Commissioner 1980 1QB 49, and Mitchell v Campbeltown Shipyard Ltd & ors, Lord Osborne, unreported 3 March 1998, relied upon by the defenders, in Mitchell the pursuer had been trying to make a case of direct liability based on a breach of regulation 3 and again in Malone the pursuer had been trying to extend the common law.

[23] Counsel for the defenders submitted that the pursuer was seeking to superimpose statutory obligations on the common law and that any evidence on such a matter is irrelevant. The crucial difference between the statutory approach and the common law approach is that risk reduction measures would require to be taken under statute if a person concluded that there is a risk, however remote or unforeseeable, whereas under the common law injury must be foreseeable as likely, not just possible. The test under the regulations has sometimes been describes as a "foreseeable possibility". He referred to McDonald v J Sainsbury PLC [2010] CSIH 39 and Taylor v City of Glasgow Council 2002 SC 364.

[24] He submitted that the pursuer's case in relation to risk assessment relied on the fatally flawed proposition that in creating a statutory duty on employers to perform risk assessments, it also created a parallel and identical common law duty on schools to undertake the same formal assessments which, if not done, would result in civil liability in direct conflict with the specific terms of the regulations. The correct approach could be found in Malone v Metropolitan Police Commissioner, supra, in which it was argued that from the existence of certain statutory provisions one could divine extra powers at common law. Counsel quoted from the opinion of Stephenson LJ, "Until I listened to this argument I never heard that the statute book was a source of the common law". In the present case the pursuer's proposition is the more startling as it attempts to extrapolate a common law duty which goes against an express statutory provision. In Mitchell v Campbeltown Shipyard Lts & ors, the court, faced with a similar argument to the present one, said:

"As regards the suggestion that, in some way, the standard set by the regulation might constitute a criterion by which common law fault might be judged, I consider that such an approach is fallacious. .........it is a question of fact in every case whether a statutory duty is co-extensive with or more or less extensive than the common law duty. In other words, there is no necessary connection between a common law standard of care and a standard of care imposed by statutory provision."

A similar approach was taken by Sheriff Principal MacPhail (as he then was) in McRitchie v The Scottish Ministers, unreported, 21 July, 2004. It was argued that averments, in a common law case, about regulation 3 were relevant to the issue of foreseeability, but the court concluded that the pursuer was effectively attempting to make a common law case to the effect that a risk assessment of the kind required by the regulations ought to have been made. Although it is proper when construing regulations 4 and 20 of the Work Equipment Regulations to take account of regulation 3 of the Management Regulations (Robb v Salamis), regulation 3 cannot increase the scope of the common law duty.

Decision on objection

[25] In the present case the pursuer is indeed arguing that there was at common law a duty of the teachers and the school to carry out a formal risk assessment. The submission was made in terms by the pursuer's counsel that the defenders had a duty to take reasonable care to carry out a risk assessment and that a reasonable authority would have done so as a result of the legislation on risk assessment, as well as guidance of the management of safety in educational establishments and their own policy. I will deal with the latter aspect in due course, but it seems clear to me that the purser is seeking to parley the statutory duty to perform a risk assessment under regulation 3 into a common law duty to do the same thing. Counsel submitted that the regulations "inform" the common law duty of care, in other words, in fulfilling the common law duty "a reasonable employer would comply with the regulations". It was also submitted in this regard that since the regulations can be said to inform the duty at common law, foreseeability should extend to whatever risks would have been revealed by a proper assessment. This last submission in my view makes it very clear that the pursuer is seeking to establish a common law duty parallel to the statutory duty contained in regulation 3, requiring a defender at common law to take a systematic, structured, five step approach to risk assessment. The contention was that the defenders should have carried out an assessment of all the risks which arose from the activity and should have adopted the schematic approach to reduction of risk which stems from the directives and is encapsulated in the regulations deriving therefrom.

[26] I do not think that the cases relied upon for the pursuer go as far as providing support for the primary submission for the pursuer. In Griffiths the court noted that it had been "common ground that the relevance of regulation 3 was that it helps to identify the standard of care to be expected of a reasonable employer" so not only did it proceed on a concession, it was a case based upon breach of regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998. In that regard one can readily agree with what Lord Hope said in Robb v Salamis that "It is proper nevertheless, when construing regs 4 and 30 of the Work Equipment Regulations, to take account of reg 3(1) of the Management Regulations...", a point echoed by Lord Eassie in Logan when, in concluding that a failure to carry out a risk assessment under paragraph (i) of reg 4(1)(b) of the Manual Handling Operations Regulations 1992, he observed that nevertheless, "A failure to carry out that statutory obligation may be of evidential significance in deciding whether the employer has fulfilled the substantive duties in relation to systems of work imposed by, for example, sub-paragraph (ii) of the regulation [reduction of risk]."

[27] The court in Sherlock did not accept that the formal procedure envisaged by Regulation 3 required to have been carried out. Bailey does not support the contention that there is a parallel common law duty to carry out a risk assessment: it is effectively a case based on failure to inspect premises. In Poppleton the court rejected the proposition that there was a free standing duty at common law to carry out a risk assessment. In O'Halloran the court simply concluded that the defenders could not show that they even addressed their minds to the sort of injury that someone in the position of the pursuer might suffer.

[28] The genesis of the regulations, which were introduced in the context of the health and safety of employees, is explained by Lord Carloway in Taylor v City of Glasgow Council 2002 SC 364. Although reg 3 imposes a requirement on an employer to assess the risks to health and safety of persons not in his employment, as well as to employees, that requirement is specifically stated to be for the purpose of identifying the measures which need to be taken to comply with his statutory obligations. The statutory provisions for risk assessment are part of a whole package which is designed to achieve reduction of risk to the lowest factor possible and it arises in the context of a hierarchy of action which has to be taken and the stated objectives of the directives from which the regulations are derived. As Lord Reed pointed out, the idea is to provide a standard higher than that of the common law. As Lord McFadyen pointed out in Hall v City of Edinburgh Council 1999 SLT 744, a case under the Manual Handling Regulations 1992, a risk of injury under regulation 4 of those regulations meant merely that injury is foreseeable as a possibility, whereas at common law the issue is whether injury is reasonably foreseeable as a consequence of the operation.

[29] It was not contended by the defenders that it was unnecessary for the teachers to take account of risk of injury when arranging the activity, only that they were not required to undertake a formal regulation 3 type risk assessment as described by the pursuer's witnesses. In my view the effect of regulation 3 cannot be to create a common law duty to assess risk in the manner required by the regulations. I consider that most of the averments, and the evidence, about risk assessment is irrelevant. The elaborate mechanism for risk assessment under statute, with the hierarchy of risk which is involved, cannot define what is required at common law. The risks which must be foreseen under statute and under common law are not the same. The lengthy and detailed consideration of the requirements of statutory risk assessment, the factors to be taken into account, the hierarchy of factors to be looked at, are all matters which seem to have scant bearing on the simple question of whether the defenders were in this case in breach of their duty of care.

[30] Having said that, I can nevertheless see that the fact of an assessment having been done, and the result of it, may have some limited evidential significance. As Latham LJ said in Sherlock a risk assessment may provide the opportunity for an employer to show that he has taken appropriate steps to protect his employee. If it has not been done, then an employer cannot point to it as evidence that consideration was given to the risks of an operation. Its absence may help indicate, in the absence of other satisfactory evidence showing the contrary, that the risks have not been addressed at all. However that is not to say (a) that there is a duty to carry out a formal risk assessment, failure to carry out which can sound in common law; or (b) that evidence as to the whole scheme of statutory risk assessment, its purpose or the hierarchy of actions is relevant to the consideration of whether a risk of injury can be identified for the purposes of the common law.

[31] Turning to the argument that the evidence relating to risk assessment under regulation 3 was relevant as part of the defenders own safety policy, and that their failure to follow that policy in turn indicated a breach of the duty of care at common law, I also reject that argument. In the first place, there was no suggestion that in adopting the policy which they did they were somehow accepting upon themselves a burden greater than that imposed at common law. In the second place, it is clear that the policies were devised in the context of the statutory obligations upon them and I cannot conclude from the reference to, for example, risk assessment, in a context in which there was a statutory duty for them to make such an assessment, that in failing to carry one out they are in breach of their duty at common law. That would be tantamount to saying that whenever a defender adopted a policy to carry out a risk assessment, a duty incumbent upon him under statute, but does not do so, he is in breach of his common law duty. It would effectively introduce common law liability for the breach of a statutory obligation. Equally, the guidance issued by the HSE must be looked at in the same light. Their context and purpose is to assist the defenders in carrying out their statutory obligations. The fact that following such documents might have identified a "hazard" does not mean that a reasonable teacher should have concluded that there was a risk of injury at common law. A hazard might be identified, yet nevertheless it might easily be the case that no action might require to be taken at common law. An example in the present case may be found in relation to the use of the brushes in question at a desk or table. The evidence of all the experts was that a risk assessment would have identified the brush itself as a hazard. It was clearly the view of Miss Laycock that the brush should not be used in any circumstances. Overall that view was not shared by Miss Edgar or Mr Greasly and in fact the ultimate submission for the pursuers accepted that the use of the brush by an individual pupil at a desk was one that would be acceptable. There could not reasonably be said to have been a foreseeable risk of injury from the use of the brush in those circumstances. That was specified in paragraphs 89 to 95 of the pursuer's written submissions and was repeated in the course of argument. It was the circumstances of use of the brush which effectively created the risk at common law, notwithstanding that the brush itself might have been identified as a hazard for statutory risk assessment purposes.

Standard of care

[32] It was not disputed that the defenders, and the teachers employed by them, owed a duty to take reasonable care for the safety of the children in their care, but there was a dispute about the standard against which that duty should be judged.

Submissions

[33] Counsel for the defenders submitted that the teacher pupil relationship is not the same as that of employer/employee: rather the teacher is in loco parentis. "It would be neither just or reasonable to impose upon the school a greater duty than that which rests on a parent": Van Oppen v Bedford Trustees [1990] 1 WLR 235 per Balcombe LJ at 263 F-G. If there is some inadequacy in the standard of education supplied the test may be the Hunter v Hanley test, but where an accident occurs the test is that of the reasonable parent. In any event, the duty on the teacher is to exercise their common sense having regard to the circumstances of the school environment, the age, inexperience, carelessness and high spirits of their pupils and the nature and degree of the danger. In support of their contention the defenders cited the following cases: Leah Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07; Maher v Presentation Junior School Mullingar [2004] IRLHC 337; Macpherson v Perth & Kinross Council, Lord Eassie, 26 January 2001, unreported; and Ahmed v City of Glasgow Council 2000 SLT (Sh Ct) 153. In any event, in arranging this activity, the teachers did take account of the risks that would have been identified by someone with an enquiring mind.

[34] The pursuer submitted that the defenders had not identified the correct approach. This activity took place in an establishment for which there was a health and safety policy which placed certain obligations on the teachers which are not the same as those which would be placed on a parent in the same circumstances. They had delegated duties under the policy which included not allowing the children to take part in any activity which was unsafe. The home and school environments differ in so many ways that it is impossible to conceive of the role and responsibilities of the teacher, as if he stood in place of a parent, reasonable or otherwise, in relation to the child at school. Matters have progressed in the field of health and safety since the use of the term in loco parentis began in the late 1800s and must be seen in the context of subsequent developments aimed at preventing unnecessary injury. In Macpherson v Perth & Kinross Council, Lord Eassie expressed reservations concerning the utility of any guidance based on the hypothetical response of a parent in relation to matters such as teaching policy, administration of a school, and the policy to be followed in relation to the education of large numbers of children. In any event, the risk is so obvious here that a reasonable parent would not allow it.

Decision on the standard of care

[35] In Ahmed, Sheriff Principal Bowen quoted and agreed with the following observation by Geoffrey Lane J (as he then was) in Beaumont v Surrey County Council, (1968) 66 LGR 580:

"The duty of a headmaster towards his pupils is said to be to take such care of them as a reasonably careful and prudent father would take of his own children. That standard is a helpful one when considering, for example, individual instructions given to individual children in a school. It would be very unwise to allow a six year old child to carry a kettle of boiling water - that type of instruction. But that standard when applied to an incident of horseplay in a school of 900 pupils is somewhat unrealistic if not unhelpful.

In the context of the present action it appears to me to be easier and preferable to use the ordinary language of the law of negligence. That is, it is a headmaster's duty, bearing in mind the known propensities of boys and indeed girls between the ages of 11 and 17 or 18, to take all reasonable and proper steps to prevent any of the pupils under his care from suffering injury from inanimate objects, from the actions of their fellow pupils, or from a combination of the two. That is a high standard".

[36] In agreeing with these comments, sheriff Principal Bowen went on to say:

"The concept of the "care of a reasonably prudent parent" relates to a standard of care and is a helpful practical guide as to what one may expect in cases, as Lane J put it, involving individual instructions to individual children. It should not, in my view, be invariably recited without regard to the circumstances in every case which involves the actings of a school teacher."

With these observations I agree and I do not accept the defenders' suggestion that the present situation can be equiperated with that of giving individual instructions to individual children. I agree with Sheriff Principal Bowen that the general nature of the duty is as set out by Professor Walker in his work on Delict (2^nd ed), p1062, where he states that:

"A school teacher owes a duty to take reasonable care for the safety and health of the children under his charge, and must exercise care and forethought, having regard to their age, inexperience, carelessness and high spirits and the nature and degree of danger, not to subject them to avoidable risks of harm."

Evidence

[37] Both teachers gave evidence. The first, Mrs Lynn Stirrat, accepted that she would be fearful of children using something sharp and pointed because of the risk of penetrating injury. She would possibly allow the use of scissors at floor level but not compasses because of the risk of injury. After the accident, floor based activities were stopped immediately and all paintbrushes such as the one in question were removed. They were shortened and foam ends were added. Since then the brushes have all been replaced and they no longer use ones like 6/26, the type used on the day of the accident. Prior to the accident they just used the brushes which were there. Lower down in the school children had thicker brushes and this gradually changed as they went up through the school. The thicker ones tended to have more rounded ends. She said that the school was open plan and space was restricted. The children do tend to work in close proximity so they arrange it as best they can. She agreed that care had to be taken when the children were working in close proximity to one another using any item capable of causing a penetrating injury. On the day in question there were fewer children in the class because some were at sports or practising for the school show. They decided to involve the other children in the show by getting them to paint scenery. Some of this could be done at desks but some were too big. More than half the children were gone so they decided to use the floor as there was plenty space. There were about 20/24 children there in total.

[38] Painting on the floor was not a common activity. It had been done for previous shows, at least once, but was not a normal activity. They taped together four A1 sheets. The teachers would have issued the brushes to the children. There was a large gathering area in the middle of the room and they pushed some tables and chairs away to create more space.

[39] She agreed that the brush 6/26 was a long pointed object capable of causing injury; that if the children were working on the floor they were less stable than at a desk; that children tend to be top heavy and can lose their balance easily; that this was true of children of this age; that if the children are on the floor there is a risk of people tripping over them or of their tripping over one another; and that the closer they were the greater the risk of contact with the piece of equipment being used.

[40] Q: If children are working on the floor in close proximity with that brush what is the risk? A:That it could cause damage or it could cause an accident. It could pierce the eye, obviously, or any part of the face. Also the roof of the mouth.

Q: You can see that just by examining the brush? A: I can

Q:If you apply your mind to the risk of the brush in that way you can see there is a risk of injury? A:Yes

Q: And by applying your mind the risk becomes obvious? A: It does

[41] At end of evidence in chief she agreed that she should not have allowed the activity that day, but explained in cross examination that this was with the benefit of hindsight. "I'd never imagined such a horrendous accident or I'd never have allowed the activity. I really believed we'd prepared the base and the children as well as we could for the activity. We'd never allow any injury if we thought there was a risk of injury. Everything we do carries some sort of risk - we do the best we can to ensure the safety of the children is paramount every time. We do our absolute best to do that. We would never knowingly put a child in danger." They developed class safety rules with the children. There was a lot of common sense involved in it. She had never heard of any accident of this kind before or since involving a paintbrush. At the time she did not consider the brushes to be potentially dangerous.

[42] A lot of activities in the school are done on the floor, to this day. With only three children painting on the floor she did not have concerns as there was space. At the time all the brushes were long ones, even the thicker ones the infants used. She acknowledged that the class teacher is essential in ensuring a safe environment. She accepted that before hand and put it into practice.

[43] There was some evidence, from her and other witnesses, about how the children might have been holding the brush, especially in relation to their faces, but I could really take nothing from it. It was clear from the evidence that the brushes were not static and that the position of the children in respect of the brushes would vary according to their movements and so on.

[44] She didn't think that Stephanie would bump into Thomas in the way that she did. She thought they would be moving back and forwards to paint, and sitting back, but did not anticipate that there would be a movement which would cause such devastating injury. She took into account the amount of space they had and made sure they had plenty space to work for safety. It might have worked to get the children to do separate bits, that is a technique which is sometimes used with the children but it wasn't really appropriate for that scene. If they had to do it at a desk they would have to lean over, they would still be unstable, although the fact they were standing might have helped. The children might have to stretch to get to the other side of the painting, that was one of the reasons we put it on the floor - it might be easier.

[45] She was asked applying her mind to it then did she consider the brushes to be dangerous and she said no, but it was clear from other evidence that at the time she did not in fact apply her mind to the brush at all, she simply used what was there without thinking of the use of the brush in context. At the time she did know of the general risk of penetrative injury from pointed objects. Children often sharpen pencils from both ends in which case she removes them to prevent the children using a pointed implement facing towards them. It was put to her that she simply didn't assess the risk from the brush and she said "At the time, no". It was suggested that she didn't apply her mind to it and she said "I didn't. I feel I applied my mind to the activity of which the brush was a part but specifically the brush, I suppose I didn't apply my mind to the actual safety of the brush"

[46] She accepted that if one of the children finished the bit they were working on they might get up and move. It was anticipated that they would move forwards and backwards, moving the brush with them, and that they would get up and move around to different parts of the paper. Although accidents from use of a compass are very rare they did not allow them to be used at floor level. They also didn't tend to use scissors on the floor, although again accidents from their use are very

rare.

[47] The other teacher, Mrs Louise Holmes, accepted that she needed to apply her mind to activities on a day to day basis. Eye safety was a concern with the use of compasses because of the sharp end. She was aware in 2003 that there was a risk of injury to children from pointed objects. Teachers do in fact assess risk in every situation.

[48] On the day in question because some children were away they decided to do the art work for the show. Such large paper was involved that they needed more space to do it. It was different from their normal activity. They only had paintbrushes such as 6/26 so those were the ones they used. They are long, thin and pointed, about a foot in length. She didn't apply her mind to selection of the brush for the activity, she simply used what was there. She agreed that the brush was capable of causing injury to a child. They were always very keen to make sure that the children were aware of the danger of jabbing people with objects which could cause injury to any part of a child, including the face, throat and eye.

[49] Applying her mind to it she could see that the brush is a hazard. If children are working on the floor they will be less stable. If children are working with a sharp object they need to be in as stable a position as possible. She was aware of that before the accident. It was foreseeable that the children would move around, they might get up, they might want more paint or another brush. It could be anticipated that they might move around with the paintbrush.

Q: If you apply your mind to the brush and the activity of painting on the floor the risk of injury is obvious? A: Yes

[50] After the accident they were told not to paint on the floor or to use the brushes again. At the time she envisaged a bigger risk doing it at tables pushed together as the children would have to crawl over the table to get to the centre. Prior to this she had never been aware of any accidents with brushes. She would always consider any activity from the point of view of health and safety and would be constantly monitoring classroom activity. She would think about it at the planning stages and when the pupils entered the school.

[51] Asked whether she applied her mind to the task and whether there were any serious risk implications she said "Yes. We only carried it out because there were fewer in the base and we could move the furniture."

[52] Apart from the two teachers the pursuer led evidence from the head teacher, Mrs Morton, who was off sick at the time of the accident, and three health and safety experts. As I have already mentioned a great deal of the evidence of these witnesses related to risk assessment techniques required under the management regulations. Lengthy examinations of expert witnesses in relation to the practice of risk assessment, use of the terminology of structured risk assessment, consideration of whether a hazard was "adequately controlled", a clear reference to statutory protection schemes, is really not helpful to consideration of the simple question arising in this case. When the pursuer's experts spoke of a hazard it was clear that they were in the main using that term as understood in statutory protection schemes and not from the point of view of the common law. Their assessment of how one approaches the question of risk of injury was almost all in this context and I did not find it a helpful approach in any degree. If anything it merely served to complicate a fairly simple situation. The result is that a great deal of the evidence which they gave is not relevant to the issue which I have to determine. For that reason the amount of their evidence which is replicated herein will be limited.

[53] The first of these witnesses was Miss Jean Edgar, an Inspector with the Health and Safety Executive. She was not, I am afraid an impressive witness. Even counsel for the pursuer had to ask me to assess Miss Edgar's evidence without regard to her performance in the witness box. I fail to see how I can do that: her performance in the witness box is a critical factor in helping me determine how far I can accept and rely upon her evidence. The overall impression of Mrs Edgar was of a well meaning lady who was somewhat out of her depth. Her evidence was frequently confused and confusing. She repeatedly had to be brought back to the point. The context in which she was speaking was often unclear. A great deal of what she had to say related to the fulfilment of statutory duties. Her evidence was often difficult to follow; frequently circular (counsel for both sides experienced difficulty in getting her to explain herself and by following through one answer to the next logical point often found themselves back where they had started); and sometimes apparently over- reliant on information obtained from, or opinions expressed by, others. Counsel for the pursuer recognised that her performance was "not the best I've seen" and sometimes the length of her answers detracted from what she had already said.

[54] The extent to which her evidence was helpful was limited. Leaving aside the issue of risk assessment, effectively her evidence was that in using the brush on the floor, with the children kneeling and in the circumstances desiderated, one was increasing the probability of harm resulting. She felt that the brush should not have been used on the floor. The children were in an unstable position, were bound to shift their weight quite a bit and there was a risk of bumping into each other. When she initially looked at the circumstances it appears that she expressed the view that the accident was not foreseeable. Her view changed because when she thought about the risk factors collectively she considered that an accident was foreseeable. Foreseeability is not the same as frequency - an accident might happen rarely yet nevertheless be foreseeable. The combination of circumstances in which an accident was foreseeable might be less common which would have an impact on the frequency of accidents in those circumstances. In the present case she acknowledged that the teachers had given some thought to the activity in terms of addressing, for example, the fact that there were fewer children. However they had not included in their thinking any risk from the use of the paintbrush.

[55] Miss Laycock was a health and safety expert called for the pursuer. She has a degree in risk management and pursued a career in that field for some years before taking up her present post as a lecturer in risk management and occupational health and safety at Glasgow Caledonian University. As with Miss Edgar, her evidence too was difficult to follow from time to time. There was a tendency not to answer the question posed to her, especially in cross-examination, but to answer what perhaps she might have preferred the question to be. There were examples where she would not agree to a perfectly simple proposition, for example regarding the relative risk when only 3 children are involved as opposed to 23, in the same space. Equally, when asked to proceed on a certain hypothesis she initially refused to do so because she had no evidence to that effect. Even allowing for the fact that occasionally she indicated that she had misinterpreted the question put to her, the impression remained from time to time that this witness, having adopted a certain position, felt that it was her obligation to defend that, regardless of any changes which might arise in the factual background.

[56] She had prepared a 98 page report of which 76 pages was a publication from the HSE. The report is entirely based on risk management techniques and makes use of various risk assessment models or matrices. For reasons I have explained I consider that much of her evidence is not relevant and I do not propose to rehearse her lengthy evidence about risk assessment techniques and so on. At the heart of her evidence was the opinion that the brush in itself was a hazard which should not have been used by children at all, even at a desk and that the risks attendant upon its use were increased when it was used at floor level. The brush is a sharp pointed implement with the potential for causing penetrating injuries. She thought that anyone who had looked in any way questioningly at the situation would have identified that the sharp pointed brush was an inappropriate tool to supply to a child. A hazard arises from floor based activities in terms of the posture adopted and the movement of other people around you. Children tend to move around unexpectedly and adopt a variety of different positions which they are more free to do when working at floor level. They also tend to make their movements without regard for the people around them. In the absence of a risk assessment the distribution of those brushes for that task was readily identifiable as a hazardous situation.

[57] Mr Lenford Greasley was a former Inspector of Factories, a member of the chartered institute of Occupational Safety and Health and had considerable experience in the field of health and safety in general. He had proceeded on the basis that the accident occurred as described in the accident report. He said there was an issue with the proximity of the children. The fact that they were in an unstable position - crouching - and might be moving up and down meant that contact between them was foreseeable. Children will also be less aware than adults of the position of others around them. They will be wrapped up in their task rather than in their surroundings.

[58] In the set up of the task as envisaged one would think it likely that the children would bump into one another. He later described this as a possibility. He would have preferred to see the task done at a table or desk, where the children would be in a more stable position. The brush is a sharp, pointed object tapering from 10mm at the brush end to about 3mm at the other. Sharp pointed objects can produce puncture or piercing type injuries on the body. It has to be looked at in the context of its use. The likelihood of contact between the children is increased by their proximity. There is a risk of contact with the pointed end of the brush, probably in the face area which means a possibility that the eye is the point of contact. He would be fairly happy with the brush being used at a desk. He was not saying that the brush was dangerous per se but rather that it depends on the combination of circumstances in which it is being used. Sitting on the floor might have been reasonable but kneeling remained a position of instability. The likelihood of harm occurring is not great but is outweighed by the risk of injury. The teachers should have taken a careful look at the activity and made decisions accordingly.

[59] This was a relatively simple situation which if looked at carefully involved children crouching on the floor over paintings using long handled brushes in a manner where it was likely the ends would be close to the face. Analysis of that risk does not require any expertise in schools, merely an inquiring mind. The situation does not need to be elevated to something scientific. It is a simple situation which involves a young child with his face over or near the end of a paintbrush. One could look at the situation and identify it as dangerous.

[60] It was put to him that the risk of an accident was in the circumstances "just a possibility" rather than a probability and his reply was "I would say that it is a possibility that harm could ensue". Asked whether he would expect teachers to carry out a formalised risk assessment for every different activity which children did, he said "I'd expect teachers to carefully look at the task they were about to perform and see whether there were any potential problems before setting sail." He would expect them to look at it and exercise judgement.

[61] He would expect anyone coming across the situation of a child crouching using the brush in close proximity to the face to recognise the potential for causing harm. It is something anyone could see. He would expect a teacher to be aware of movements of the children and how they interact with each other and so on and factor into any equation that they may be expected to bump into each other. It was put to him that the risk was a remote one and he said that it was a possibility not a big probability. He said that if the children were kneeling there would be less risk. He thought that if the children were in a kneeling position carrying out this exercise then he would guess that most people would feel comfortable with that. It was a matter of judgement. In re -examination, he was asked to consider the hypothesis that the children were in the position in which I have found them to be, and moving backwards and forward and stretching. In that situation he said one would think there might be some contact.

Discussion and decision

[62] It is worth bearing in mind that this is actually an accident with a relatively simple mechanism of injury and with a case which is based entirely upon alleged failures of duty at common law. I make this point because article 2 of condescendence runs to 12 pages with extensive quotation from guidance documents, and because so much of the evidence for the pursuer was taken up with the issues of risk assessment, risk assessments by the school or the department; whether staff were trained in carrying out these; whether the requirements of the legislation regarding risk assessments had been followed; the techniques appropriate for a structured risk assessment; whether a formal risk assessment had been done, either for art and design or for the particular task under way and the like. Miss Laycock, in particular, who was in the witness box for two and a half days, was asked about the theory and philosophy of risk assessments, the "five stage steps", her experience of the practice of risk assessment in the workplace and so on. Only five witnesses were led at the proof which lasted 3 weeks.

[63] The pursuer did not prove the averment that prior to the accident the school had a policy that pencils were not to be used on the floor; nor did they prove an averment that in another school under the control of the defenders this policy extended to paintbrushes. They did not seek to rely on any alleged practice as to paintbrushes in other schools. Nor did they seek to rely on the happening of any similar accident anywhere else prior to this. It was also accepted, ultimately, that the use of the brush at a desk would have been acceptable. The risk arose not from the use of the brush in itself but the circumstances of its use. The factors brought into play by its use on the floor created the foreseeable risk of injury. This is another reason why much the evidence of Miss Laycock had to be viewed with caution, because she proceeded on the basis that there should have been no use of the brush at all, and that in itself it posed an unacceptable hazard regardless of the circumstances of use.

[64] One of the many problems with the way the evidence was addressed in this case, based on the application of the structured risk assessment approach, was that few of the witnesses were asked in detail about the totality of the task on which the children were engaged that day. They were asked about individual risk factors: for example, the number of children engaged on the task; the proximity of the children; what might be expected in the way of movement and so on. They were also asked about the brush in itself: all the expert witnesses saw the brush as a hazard which carried with it the possibility of harm. However, the question for me is whether the use of the brush in the whole circumstances, taken together, not as individual risk factors to be entered into some matrix, were such as to create a foreseeable risk of injury. The fact therefore that the brush was generally only seen as creating a possibility of injury does not take the defenders as far as their counsel suggested it did. In itself, the brush may only carry a possibility of injury; moreover when used by an individual child at a desk, that risk may be negligible. Here the issue was different: the brush is a long, thin, tapering, sharp, pointed object; it was not being used at desk level but on the floor; the children were kneeling over the paper to work, with the sharp end uppermost; they were not only in close proximity to each other but in a situation where it was expected that they would move over the paper, backwards and forwards with the brush in their hands, again pointed end uppermost and close to the other pupils, and that they might get up and move to other parts of the paper. The fact that they were kneeling, not crouching, improved their stability to a degree over that which is averred by the pursuer, but it is still a position which carries with it some instability. It is the use of the brush in all of these circumstances which required to be addressed. The fact that there had been no reported accidents with such brushes would no doubt give the defenders some comfort in respect of the traditional use of these brushes at a desk or even an easel. The same does not follow in relation to the use to which they were put on the day in question, which Mrs Stirrat said was "not a normal activity". Despite this, it is clear that no consideration was given by the teachers to the role which the brush might play in the activity which they were setting up. In these circumstances I think that the risk of some sort of penetrating injury from the brush was a real and foreseeable one. In the exercise of reasonable care those involved should have had regard to all the factors I have mentioned. In fact it is quite clear that the teachers had regard to some of these but not others. In particular they had no regard at all to the brush which was simply selected because that is what was there.

[65] The teachers said they assessed the activity of which the brush was a part but when one examines what they did it seems clear that they did not consider the effect of using the brush at floor level; the effect of the proximity of the children one to another when using such a brush and the effect of the anticipated movement by the children when they were in that position. Quite apart from the expectation that they would move backwards and forwards, it was, I think reasonably foreseeable that one or other of the children might get up before the others and might lose their balance in doing so. It is equally foreseeable that if they move around the paper there may come a point in the activity that one child would indeed have his back to another. None of these factors, which are fairly obvious, were taken into account by the teachers. They did take account of the need to clear space for the children, and thus keep them separate from other children engaged on other activities; they took account of the number of children in the room and the fact that numbers were reduced by virtue of others being at football or music; so they considered, to some extent, the risks which might be posed by other children. They do not however seem to have considered the risks which the children might in the circumstances pose to each other; and in particular they did not consider the risk of injury which might be posed by using the brush in these circumstances.

[66] When one looks at the whole circumstances of use of the brush a real risk of injury emerges as foreseeable. A reasonable person in the position of the teachers would have taken steps to prevent that foreseeable risk of harm to Thomas. This could have been by the provision of different brushes, which seem to have been available for infants. It could readily have been by allowing the work to be done at a desk. The teachers suggested that the size of the work was such that it could not be done on a desk nor could it have been done on separate bits of paper which were later joined together. However, I think that it could have been done at in such a way. The evidence was that the children were filling in something which had already been drawn on the paper: I see no reason why that could not have been done individually by them. There was no persuasive reason why the task could not have been done at desks. I accordingly propose to sustain the first plea in law for the pursuer.