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Is Your Nursery At Risk Of Being Sued For Minor Accidents?

While most settings have risk management systems in place and see serious incidents rarely, what happens when smaller accidents occur?

  • Is Your Nursery At Risk Of Being Sued For Minor Accidents?

The vast majority of nursery settings are safe places for children to attend – the fundamentals of risk management are well established, and where under-fives are concerned many are just common sense.

As a result serious accidents occur very rarely. When they do, rightly investigations are carried out, and if individuals or organisations are found wanting, they are held to account.

But what about minor accidents? Bumps and scrapes still happen – every day. No matter how careful a staff team might be, energy plus excitement divided by still-developing gross motor skills only adds up to one result.

Handled in the correct way, such incidents shouldn’t be a problem for anyone – but in our increasingly litigious society, are nurseries vulnerable to accusations of negligence against which they have little defence?

Legal action

If the experience of one provider that contacted Teach Early Years recently is anything to go by, the answer is a resounding ‘yes’. For reasons that will become obvious, the setting in question has asked to remain anonymous, but its owner is keen to warn others.

Recently the nursery received notice that it was the subject of a personal injury claim. It related to a toddler who had had an accident at the setting more than a decade previously – he’d had a bump and cut himself while running across a room.

Thankfully, it wasn’t serious enough to require stitches and the manner was thought resolved to the satisfaction of all involved. Needless to say, the news that legal action was under way came as a shock to the nursery.

The boy’s parents had decided to pursue a ‘no win, no fee’ injury claim on behalf of their now teenager. Their argument was that the nursery had been negligent in allowing the child to fall, and that the incident had resulted in a scar that had in turn caused psychological damage.

Importantly, they had retained the accident slip the setting had given them, which, the nursery discovered, entitled them to make a claim up until their child reached the age of 21.

No defence

The provider doesn’t dispute that the accident occurred – it has its own record of it, which notes that the child was taken to hospital at the time as a precaution. Nor does its insurance company, which having elected not to contest the claim (while not admitting the charge of negligence), offered the parents concerned a four-figure settlement.

Unfortunately, the offer was turned down in favour of a court hearing and, potentially, a bigger payout, with the outcome still uncertain at the time of writing.

The nursery’s owner’s concern is that an apparently routine and long-resolved incident has so easily led to the prospect of considerable compensation, and that potentially, any number of similar minor accidents could be exploited for financial gain. This of course could lead to raised insurance premiums across the sector, as well as considerable ongoing uncertainty.

Commenting on the situation, the owner told us, “I’m saddened that this appears to be just an attempt to make money. The staff member involved at the time thankfully is still with the nursery and remembers the incident well – the family even bought her chocolates to say thank you for how it was handled. Surely if there were any repercussions from the accident these would have been raised a lot sooner?”

Whatever the validity of the claim in this case, clearly all providers need to be prepared to respond to cases of this nature and mitigate their financial and reputational impact.

THE OVERVIEW

Jerry Beere, Director at childcare insurance specialist Morton Michel, addresses the issues

“There is no distinction from a liability point of view between a major or a minor claim. An insurance policy will potentially respond to any claim of negligence; insurers will choose to fight or not depending on the strength of the defence. Potentially going to court can quadruple their costs, so there is a pressure to settle, but they have been adopting a much tougher approach in recent years.

“It’s not clear that the number of claims is increasing – new procedures have probably cut down somewhat on how many are being submitted. But it does appear that settlements are going up, which could have an impact on premiums.

“The important thing for providers is to keep all accident records and insurance documents, even if a nursery owner retires, since liability claims can emerge many years after the event.”

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