Last week, the staff at Blackminster School, Evesham contrived to stage an impromptu hoax killing in a playground full of 10 to 13 year olds.

For some unfathomable reason they thought it would be a formative experience for them.

Without any warning, the poor lambs were obliged to witness a hooded figure run up to Mr Kent, their beloved religious knowledge teacher and gun him down in cold blood before running off.

Mr Kent apparently met his maker most convincingly.

The terror-stricken children, were then led off , crying, vomiting and right royally traumatised, into the classrooms and, thereafter, were herded into the assembly hall where, after an unconscionable delay of about a quarter of an hour or so, they were told it had all been a hoax.

So that’s alright then, is it?

Er…no actually.

In a British playground, where it is now forbidden to play conkers, throw snowballs, eat sweets, climb trees or even to run, it’s apparently quite OK for the teachers to stage horrific murders in front of the children without warning.

How infuriatingly and pathetically ironic;  but also how unforgivably arrogant of the Blackminster staff to think that such a ghoulish act could in any circumstances be thought educational or anything other than severely harmful to the children.  Apparently, the idea was to create a Crime Scene Investigation to spice up the science lesson. Ha!

Will they just get on with teaching our children how to count, read, write and string a sentence together and leave off trying to turn them into pre-pubescent forensic investigators?

For pity’s sake!

The following blog comment set my lawyer’s mind working:

In the US you would not be able to see the school gates for ambulance-chasing lawyers.  I would hazard that the damages awarded against the school by a US jury would stretch to seven figures.

So what is the legal position in the UK?

Can these teachers be successfully sued for such outrageous behaviour?

One thing is for sure, if the boot was on the other foot and it was the children that had staged a mock massacre of the innocents for laughs, they would be suspended and probably expelled.

So…what about the teachers?

English Law, as is so often the case, is not entirely clear on whether or not an intentional hoax that causes panic, trauma and nervous shock of the kind that every child in the Blackminster School playground must have suffered by the deliberate act of their teachers, is actionable, but I suspect that I voice the opinion of many when I say it damn well ought to be.

It is high time to revive an old authority in the form of Wilkinson –v- Downton [1897] 2 QB 57 and bring it back into service especially to deal with cases like the Blackminster case where the hoax in question is perpetrated in the context of the special relationship of trust that exists, or should exist, between teacher and pupil, or any other special relationship of trust for that matter.

Wilkinson –v- Downton  was a case involving a hoax or practical joke of  similar ilk, although nowhere near as gruesome as that practised upon to the poor childer of Blackminster School. The defendant was successfully sued in damages for causing nervous shock and trauma to the landlady of The Albion Public-house by telling her that her dear husband had been severely injured in a riding accident. It was not true but he thought it was a bit of a laugh. She was so traumatised that her hair turned white and fell out, apparently. The perpetrator had to cough up damages of £100 which was a tidy sum in those days.

This early case established that the legal tort of intentionally causing emotional harm to another person was actionable before the English courts. The court deliberately fudged the question of intention saying that intention could be imputed to the defendant if a reasonable person would have recognised that the hoax would cause severe trauma to the plaintiff.

So we are already up and running in our claim against Blackminster then.

It is pretty clear that the staff of Blackminster School intended the hoax killing to be witnessed by the children and to produce some kind of emotional effect upon them. Even if the staff were so emotionally-challenged themselves as not to recognise the effect that the gruesome subterfuge would have on the children (which alarmingly seems to be the case), no reasonable person would conclude that the effect of staging a cold-blooded killing in a school playground by the very people who stood ‘in loco parentis’ could do anything other than to cause severe nervous shock and mental distress to the children.

The problem is that the legal tort of intentionally or recklessly  causing emotional harm to another person has rather been over-reached by the broader law of negligence and, the courts have, as a matter of public policy, deliberately sought to limit the principle that anyone who causes nervous shock or severe trauma to another person is liable to be sued in damages. The argument seems to run that it is commonplace for pranks to be played, or words to be used, with the deliberate intention of causing humiliation or some kind of shock and the law should not award damages as a matter of course in such cases.

Well OK, but it is rather a matter of degree, isn’t it?

Surely, there is a distinction to be drawn between telling a workmate that his fly his undone and then flicking his nose when he looks to see, and a hoax murder in cold blood of a teacher followed by  make-believe and unsuccessful CPR by teachers in front of their pupils without any prior warning or explanation.

By staging the murder hoax, it would appear that the staff of Blackminster behaved negligently and in breach of the high standard of care that any teacher owes a pupil. The question is whether the law, in its current unsatisfactory state, would uphold a claim in damages for the nervous distress thereby caused.

The children would have more of a chance if they suffered, or go on to suffer, recognisable psychiatric illness as a result of the shock that they endured, although, of course, no-one would wish this upon any of them.

What the law regards as ‘psychiatric illness’ is again open to debate. It would probably include severe post-traumatic stress disorder, anxiety disorder and other severe psychological condition caused by the shock. It may well not include simple nervous shock and its immediate, but temporary, symptoms.

Shame.

An action in negligence against the school would also require the various ‘proximity tests’ to be satisfied. These are the somewhat arbitrary limitations that the courts have used to prevent a proliferation of ‘anxiety claims’. For instance, the law requires that there should be a ‘special tie of love or affection’ between the personal suffering the accident and the witness claiming nervous shock as a result. It may be doubted whether the teacher-pupil relationship would satisfy that test, especially in this particular school.

However, I would argue that the children in this case were not witnesses but principal victims of the hoax that was perpetrated against them so that the proximity tests should not apply.

Sometimes, old law is good law.

I would like to see a class action brought against the school based on Wilkinson –v- Downton (discussed at length with other relevant case law by the House of Lords in the Wainwright case [2003]) on the basis that real nervous shock and psychological distress (though short of psychiatric illness) suffered by the victims of a deliberate hoax, where the perpetrator intends to shock, or is reckless as to whether shock is caused, and where the perpetrator is in a special position of trust such as  a teacher, should be compensated by the payment of substantial damages.

This would teach the blighters a lesson since they seem incapable of teaching a decent lesson themselves.

Quis cusodiet ipsos custodes?

Only the courts, I fear.

Adrian Dayton’s timely book on Twitter for the Legal Profession:   Social Media for Lawyers: Twitter Edition  is a ‘must-read’ for all law  firms.

Indeed, it should be studied avidly, not only by lawyers, but also by any professional service firm that wants to grow its business fast using Web 2.0 techniques.

As a successful New York attorney turned social media guru, Dayton deals with his subject comprehensively and with an easy authority.

He begins by dismissing, with an unanswerable charm, the main excuses that the legal profession commonly gives for avoiding Twitter. Indeed, in a world where the High Court in London has recently authorised the service of formal legal proceedings by Twitter, it is difficult to understand how anyone can now fail to see the relevance of Twitter to the legal profession.

The author goes on to explain, with a kindly guiding light, how to set yourself up on Twitter, how to find people to follow and how to establish your own following. More importantly, the book bursts with practical advice and tips on lead generation and marketing and the secrets of how to turn tweeps …into clients.

The depth and power of Twitter is not immediately apparent to new tweeters. Many people just do not ‘get it’ at all. This book gives you the do’s and don’t’s upfront and shares the inside secrets that will save you weeks of trial and error.

It is both an honour and a pleasure for me to endorse this book in the week when my own firm’s Twitter following has surpassed 5000. It is also an act of great selflessness on my part that I may live to regret. In the vernacular of the Twitterstream:

@London_Law_Firm: MEMO TO UK LAWYERS. Follow @adriandayton. He rocks. His book is a gem, a veritable Twitter-piece of Web 2.0 wisdom. Read and learn.

The High Court in London willingly concludes that UK legal proceedings can validly be served….by Tweet!

Already dubbed the Blaney Blarney Order, a UK Court held yesterday that an injunction restraining a Twitter imposter posing as an established Twitter blogger and right-wing political commentator could be served on the impostor using Twitter. Seasoned Tweeters like @London_Law_Firm will just shrug and say “So? …Why not! Perfectly sensible”.

After all, legal proceedings may be served by email and by fax.

It is amusing that a social web medium with such an inconsequential name as ‘Twitter’ should so quickly become a recognised part of the social and legal fabric of society and enshirined as such By Order of the Court!

If you do ever get served with legal proceedings by Tweet …just think what fun you will be able to have by RT’ing them and inviting comment and support on the Twitterfeed….and will such publicity and public comment prejudice any future hearing in the matter?

Web 2.0 has not quite got its head around the ’sub judice’ rule, its seems.

Was the possibility of ‘Trial by Tweet’ actually considered in this case?

We feel another legal Twecedent is begging to be set!