Paintbrush injury pupil set to receive pay-out
BBC News, Scotland.
A council has been held responsible for an accident which left a 10-year-old pupil with "catastrophic" brain damage.
Thomas Brown, now 18, attended Ladywell School in Motherwell when he fell on a paintbrush which pierced his eye.As one who constantly moans about the health & safety and compensation culture, there are times when you have to sit back and say fairs fair. A child has received a terrible injury that will be with him for the rest of his life and it could have been prevented. Good luck to him.
The Court of Session in Edinburgh ruled that North Lanarkshire Council failed to prevent a foreseeable risk of harm.
This is not one of those times.
It seems the judge and the child's parents have a definition of the word "foreseeable" that does not tally with my own. This is the accident that should have been foreseen:
They were kneeling or crouching on the floor painting four sheets of paper which had been stuck together. The paper was too big to fit on a desk.That would have a high comedic value if it weren't so tragic. Child bumps into other child who falls onto third child's paintbrush which goes in his eye. The possibility of that scenario ever occurring again is remote enough to be negligible. Yet it should have been foreseen. By who? Wizards?
A girl stood up and bumped into Thomas, causing him to topple over and fall onto the paintbrush of a third child.
The pointed end of the foot-long thin brush went into his left eye.
It seems people not being psychic is becoming something of a problem these days.
The court heard that the accident had left him with no sight in his left eye and he had also suffered "a number of permanent disabilities", including poor concentration and memory and significant fatigue.That is truly a sad state of affairs. However it was simply a tragic accident, with no blame to be placed. Accidents like this do happen. That's why, in a caring society, we have things like disability allowance. It's not just for drunks.
In the action, it was alleged the accident had affected Thomas's chances of finding a job and that it was unlikely he would be able to live independently in future.
Compensation to the tune of 2.5 million of taxpayers money is not the correct response.
Mr Brown's father, Christopher, is seeking damages of £2.5m. The court will rule on the level of compensation at a later date.Neither is curtailing the fun and creativity of all the other children, just in case this unlikely anomaly ever happens again.
When I was at primary school we worked on the floor with long paintbrushes. That was thirty years ago and it's just being banned now?
Lady Dorrian was told that since the accident the local authority had issued a "safety flash" warning, stopping children working on the floor and banning the use of long paintbrushes.
*Update*
Thanks to Longrider for commenting. Apparently this is actually an open and shut case and the school was to blame.
He points out that "Unforeseeable" is different to "unlikely" with the use of one time honoured saying, "You'll have someones eye out with that".
However, H&S rules and regulations have changed incredibly since I was at school. They are a lot more stringent and take a lot more scenarios in to account. Before H&S got out of hand, "unlikely" scenarios would not have been included in risk assessments and not have been subjected to massive payouts encroaching legislation. Long pointy paintbrushes have been used for at least the 35 years of my existence, possibly a lot longer. It is only now that we live in a society that deems it necessary to stop using them because of the risk of unlikely accidents.
On further reflection he is correct. This is an open and shut case when you look at the law as it stands now. The question is, is that a good thing or a bad thing?
19 Comments:
Unlikely, and unforseebale are two different things. Anyone conducting a risk assessment has to consider what might happen even if it is unlikely. They would then rank it accordingly. It looks - from what we are told - that this did not happen.
Also bear in mind that H&S legislation places a duty of care on the employer/owner of the premises not to cause harm. That duty of care was clearly failed and the school is liable in both statute and common law.
Pretty straightforward case, really.
When you put it that way.....
Actually, it was forseeable. Think about it. Long pointy brushes and crowds of children crouching over them. Almost before you can say, "you'll have someone's eye out with that..." Oh
Utter bollocks. Why don't you ban them nasty pointy pens and pencils as well? Best you don't touched banana's because that 'could' hurt your eye as well. Let's chop of a few pointy fingers because several million of them have ended up in eyes as well.
FFS
However, if you look at the letter of the current law, as Longrider has, then it does make the school liable.
H&S law has gone from a good idea that was supposed to pevent accidents in dangerous working environments, to out of control legislation trying to make everyone responsible for everyone else stupidity.
But wait what about the morning pee?
That's a journey of fifteen feet along a landing, down three stairs and up three others. I have to negotiate two doorways as well and press three light switches as well.
Not only that I have to raise the lid on the toilet. God knows what may happen on the return journey to my bed!
Fcuk it I'll piss the bed instead because the risks of getting to and from the toilet are too great. I'll wait for someone else to take responsibility for my life.
Common sense flies out of the window when H&S, statutes are invoked.
Bucko, statute law has changed in that there are more regulations, yes. However, common law is the same and is based on precedent and places a duty of care on all of us not to injure our neighbours. It really is very straightforward; don't cause injury to others through your actions or omission. To cause injury such as happened in this case is negligence. If this had happened when we were children, the same outcome would have applied as it did for example in 1972 when the British Railways board was successfully sued because a five year old boy trespassed on the railway and was killed. Yes, we even owe a duty of care to trespassers and always have done.
The obvious solutions would be to either use shorter non-pointy brushes or have the children sitting at their desks using smaller sheets of paper that can be joined at a later stage. It may even have been a simple matter of more effective supervision preventing the children from moving about in a manner that could result in someone falling onto the work in progress.
Either way, the school failed in its duty of care.
Longrider - Maybe so. Maybe there should have been better supervision. I wont go as far as to agree with a 2.5 million pound payout or tougher regulations for the future.
A child trespassing on a railway back in 1972 would not make me personally think of holding the railway responsible either.
"Blindingly obvious" :-)
The reason the railway was responsible was because we have the Railways Act which requires the railway to be fenced - and, again, that common law duty of care. The Railways act makes the UK unusual as no one else bothers about fencing them off that I am aware of. Also, it was foreseeable that a child straying onto the line would be killed or seriously injured. The railway company therefore has a duty of care to the general public to keep them off the lines. If someone wilfully trespasses, knowing full well that they could be injured or killed, the same still applies if they get through a broken fence for example. It doesn't apply if they misuse a level crossing - indeed, in that case the railway can sue them.
Risk assessment is all too often made out to be some sort of black art. In reality, it is the application of common sense (and common sense says that a class room full of children crouching over long pointy things will sooner or later have someone falling onto one). Or, at least, it damned well should be ;)
I am on a piss poor wage though ;-)
Hope life picks up for you, sharpish.
As I said early on in this conversation, this particular case is one that I see as reasonable and justified given that the injury was pretty horrific, unlike many that we see reported these days.
If yes then I'll come up with a reasonable figure based on my personal circumstances.
If no then I may change my opinions expressed in the post.
What would you do with the miles of dangerous cliff walks around the UK? Should they be fenced off? What about the thousands of miles of slippery muddy coastal paths? Perhaps a coating of tarmac and then a nice rubbery cover?
The truth is that all of that would be simply taken from us and we would be banned from enjoying it as no Council could possibly cover it.
As for the shorter blunter paint brushes, well that's the best laugh of the week. I take it both end would be blunt?
I would assume that the state pension would still apply, but not sure about that. Benefits, no. That's the whole point of the compensation. Okay, in this case, it will be taxpayers' money, but if it had been a private company, the whole point would be that the taxpayer didn't pick up the tab. Compensation is designed to take into account a lifetime of costs for a person who - according to the reports - will be unable to look after himself for seven or eight decades. Which is why I regard the amount as being about right.
Anon, you really do talk a pile of crap. Nowhere have I said that personal responsibility doesn't apply - that's a figment of your over active imagination, so kindly refrain from assuming things that I haven't said. This was a child under the supervision of teachers acting in loco parentis. He lost a fucking eye and suffered permanent brain damage. They failed in their duty of care. The law, quite rightly allows the parents to sue for compensation. This law is not new, it's been around since the time of Richard II.
You do live in my world - the difference being that I can recognise the difference between a case that is frivolous and one that is not and I understand how the law of the land works - you clearly do not and are so blinded by your own prejudices that you cannot or will not recognise that a serious injury caused by negligence is a reasonable cause for legal action.
I admit I don't know this 100%, I will have to dig a little deeper, however I would dispute that.
If someone gets a large upfront payout, it's highly possible for them to blow the whole lot in the first year. After that, they would start to get benefits. The state will not let them rot (although it should) regardless of what they've been paid out previously.
I've expanded on this one over at mine.
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