Alastair Johnston spells out where Hogwarts gets it wrong
Between dressing up in long black gowns and uttering bizarre Latin phrases that make no sense to anyone but themselves, lawyers and would-be witches and wizards have much in common. It is therefore unsurprising that many of us eagerly anticipated the latest Harry Potter book this summer. However, having pored through the series so far, the Hogwarts’ school board could perhaps use some legal assistance.
Take Occupier’s Liability. As a place of learning and care of young adults, Hogwarts certainly has some serious health and safety issues with giant spiders, forbidden forests and a chamber inhabited by a man-eating basilisk to name but a few. Owners of a building are required to take reasonable care to ensure that the premises are safe for visitors. This includes ensuring public areas and access points are kept free from hazards as far as reasonably possible. If it is proved that the member of a school board knew, or ought to have known, of the existence of these hazards and it can be demonstrated that they failed to take adequate steps to either remove the hazard or prevent access to the hazardous area, they will likely face a wealth of personal injury claims in the future.
When it comes to Personal Injury, few characters generate such loathing as Professor Umbridge, whose favoured disciplinary method was to force students to write lines with an enchanted quill which cut the words into the writer’s hand.
Thankfully for Harry Potter it may be possible to raise a court action against Umbridge. The teachers of Hogwarts owed all students a duty of care – perhaps best-described as a duty to teach the students via approved teaching methods in a safe and supportive environment. Such cruel and unusual punishments could not be seen as “approved teaching methods”.
Having established that a duty of care existed and that such a duty was breached, Harry’s next hurdle is to establish what loss he has suffered as a result of that breach. Apart from the psychological impact of the incident, it appears Harry has suffered permanent disfigurement to his hands as a result.
Finally, to Vicarious Liability. While I am a big fan of Albus Dumbledore, his recruitment and HR skills could certainly use improvement. A host of teachers have been appointed who have either accidentally or deliberately harmed students. Employers are liable for any harm that their employees cause while that employee is acting within the course of their employment. These acts can include bullying, harassment, discrimination or violence; an employer must have taken all reasonable steps to prevent such acts or omissions from occurring.
The only saving grace that the school board may have is that the actions of the teachers, such as attempting to wipe their students memory or turn them over to the Dark Lord, are so far from what they were employed to do that they cannot be said to have been working within the scope of their employment.
Further, it could be argued that it would not have been reasonable to predict this could occur and so they can be excused from failing to put in place the necessary safeguards. However, simply claiming the position is cursed just won’t cut it in court.
• Alastair Johnston is a solicitor, dispute resolution, with Blackadders