The following is routine advice from a specialst barrister on a case dealt with by child injury solicitors where a child was injured when playing on monkey bars at school. It is an advice that provides general guidance as to the evidence that need to be obtained when investigating the case.
ADVICE ON LIABILITY
1. On (date), the Child injury claimant was injured while playing on play equipment at her school, Child’s school Primary School, (location). According to a statement by her mother, and litigation friend, was that the child fell off monkey bars in the School playground during her lunch break. As a result, she sustained a broken wrist. Through the Child’s mother and litigation friend it is proposed that a personal injury claim be brought against the Council (insurers) as the body responsible for the operation and administration of the School and the employment of its staff. I have been asked to consider the merits of the proposed claim, which my instructing solicitors are pursuing under the terms of a conditional fee agreement.
2. The Child’s mother and litigation friend has made the following allegations against the School in her statement:
(a) the flooring under the monkey bars was hard and worn and was not sufficiently protective;
(b) it had been raining on the day of the accident, causing the monkey bars to be more slippery than they would otherwise have been; and
(c) there was inadequate supervision.
3. Insurers have denied liability on the following grounds:
(a) there was rubber safety matting underneath the equipment in question;
(b) the play equipment was inspected on an annual basis.
(c) there was adequate supervision, with the nearest member of staff being 40 yards away;
(d) it was not raining at the time of the incident, although there had been a shower that had ended twenty minutes earlier.
4. My papers include some photographs of play equipment. Although the quality of the images is not great, there appear to be several photographs of an item of play equipment that consists of triangular handholds suspended from a horizontal bar or beam. If this is the piece of equipment from which Child injury claimant fell, I am unsure whether it would in fact have been monkey bars. Usually, in my experience, monkey bars are in the nature of a horizontal ladder suspended between vertical posts, or possibly short horizontal bars on either side of a long horizontal beam suspended between vertical posts, possibly with some form of step-up at one or both ends. A sequence of (swing) handholds, or ‘trapeze walk’, is a little different. Ultimately, whether Child injury claimant was using monkey bars or swing handholds, the criticisms that will be made on her behalf are likely to be the same. In the remainder of this Advice, I shall refer to the equipment as monkey bars.
5. In my opinion, the main allegations to be made on Child injury claimant’s behalf will relate to the suitability of the monkey bars for use by her in particular and children of her age in general, the safety of the monkey bars and the surface underneath them, the degree of supervision being exercised at the time of the accident and the sufficiency of any risk assessment carried out prior to the accident.
6. My papers do not include a risk assessment carried out by the School in relation to its play equipment, which is surprising. The Council should be asked to disclose all relevant risk assessments. An indication of the sort of exercise that should have been undertaken by the School can be found via the following link:. The adequacy of any risk assessment that may be disclosed on the Council’s behalf is something that should be considered by the suggested expert. It should be clearly understood that Child injury claimant will need to prove more than that the School failed properly to risk assess if her claim is to be successful. If a failure (adequately) to risk assess is to lead to a finding of primary liability, it will be necessary to show that a proper risk assessment would have identified a particular risk or risks and that preventative or precautionary measures would have been taken as a result that would probably have prevented Child injury claimant suffering the injuries that she did. An obvious risk involved in the use of monkey bars is slipping from the bars and falling. It seems safe to say that any proper risk assessment would have identified the risk, so the key question to address is the precautions and preventative steps that would have been identified and taken/implemented to eliminate or control the risk. It may be that a risk assessment would have led to the introduction of certain rules that would have prevented the accident (such as a rule that only children of nine years and older should use the monkey bars), or to precautions being taken such as very close supervision of a child on the monkey bars that would have enabled Child injury claimant to be caught or at least to have landed safely after losing her grip on the bars.
7. My papers do include some partly illegible inspection reports for the School’s play equipment. Better copies should be obtained.
8. At the time of her accident, Child injury claimant was xx years old. I expect that she would have been in the final term of her first year of junior school (year xx). The suitability of the monkey bars for use by xx year olds/year xx pupils is an issue which requires further investigation. As well as the material identified in paragraphs 6 and 7 above, I suggest that those who instruct me ask the Council’s insurers to disclose information and instructions provided by the manufacturers or suppliers of the monkey bars relating to their installation and use.
9. Once the manufacturers’ information and any risk assessments have been obtained and considered, it is possible that obvious shortcomings on the part of the School may be indicated, for example, by a risk assessment containing a prohibition on use of the equipment while it was wet or a requirement that only children older than Child injury claimant should have been allowed to use it. However, in the absence of clear indications of negligence on the part of the School, I consider that an expert will need to be instructed to carry out an inspection of the monkey bars and to provide a report, to include consideration of the following points:
(i) whether the monkey bars were installed correctly and safely (including the questions whether the bars were at an appropriate height above the ground and whether the surface underneath had sufficient shock-absorbing or other properties to constitute a safe surface);
(ii) whether the monkey bars were suitable for use in general by a year xx class of seven and xx year olds;
(iii) whether the monkey bars were suitable for use in particular by a child of Child injury claimant’s size, weight and physical capability at the time of the accident;
(iv) whether the monkey bars had been adequately risk assessed and, if they had not, what additional control measures should have been instituted and enforced (in particular with regard to instructions and supervision);
(v) whether the monkey bars complied with any relevant British Standards; and
(vi) whether the monkey bars were suitable for use in wet weather or shortly after wet weather and while still wet.
10. According to the Council’s insurers, the nearest member of staff was forty yards away at the time of Child injury claimant’s accident. An adult would only be able to provide very limited supervision from such a distance, but the real question is what level of supervision was needed by a child of Child injury claimant’s size, weight and physical capability in order to use the monkey bars. It may be that a supervising adult should have been in position to intervene as soon as Child injury claimant showed any intention of using the monkey bars, on the basis that such equipment was unsuitable for her; it may be that a supervising adult should have been very close at hand, ready to ‘catch’ Child injury claimant if she lost her grip on the bars; or it may be that fairly distant supervision was all that was required, to look out for and bring a quick end to unruly or Child’s mother and litigation friend behaviour. Supervision from a distance of forty yards would probably only serve a useful purpose in the last regard. As indicated in paragraph 9 above, an expert will need to advise further regarding the level of supervision required.
11. As my instructing solicitors might anticipate from the observations made in this Advice, I consider it premature to attempt to assess Child injury claimant’s prospects of success on the strength of the material that is currently available. While it is possible that further disclosure will reveal clear shortcomings, it is likely that expert evidence will ultimately be needed in order to form a view about the claim’s chances of success. I appreciate that obtaining such evidence carries cost implications, but it will be a necessary step to take in the absence of such shortcomings being identified on the face of the paperwork.
12. If an expert is engaged, he or she should be instructed in Child’s mother and litigation friend with paragraphs 3.15 and 3.17 – 3.21 of the Pre-Action Protocol for Personal Injury Claims. Reference may also usefully be made to Annex C to the Practice Direction on Pre-Action Conduct.
Monkey bar accident compensatoin solicitors
If your child has sustained personal injury whilst playing on a monkey bar or at a playground why not contact us for expert adivce.