Harry Potter and the School of Legal Pitfalls
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 I, like many of my colleagues, have been eagerly anticipating the release of the next Harry Potter book this summer. However, having poured through the series so far it may be that the school board of Hogwarts could use some legal assistance of their own.
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 that public areas and access points are kept free from hazards as far as reasonably possible. If it is proved that the 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 be facing a wealth of personal injury claims in the not too distant future.
On the subject of the Hogwarts castle, whilst the actual ownership of the building is never explored within the books, if the castle has been leased to the school there may be some real difficulties ahead.
Readers will know that following the Battle of Hogwarts the school was in a very sorry condition; staircases destroyed, turrets tumbling down and front doors torn from their hinges. This would have been very costly for the school, because tenants are liable to their landlords for any deterioration in the property during their tenancy.
In commercial leases it is common practice that upon the expiry of the lease a schedule of dilapidations will be prepared and served on the tenant detailing the work required to return the property to the state which it was in prior to the beginning of their tenancy. Until recently, landlords could claim large sums from tenants without ever actually carrying out the repairs. Following the Court of Session’s recent decisions however, landlords must now prove that either the repairs have been carried out or will shortly be carried out before claiming compensation from the tenant.
However, as the castle is the only operating school of witchcraft and wizardry in the country it is to be presumed that the owners will indeed have to carry out these repairs, the cost of which will not be insignificant!
Whilst I am as big a fan of Albus Dumbledore as anyone, his recruitment and HR skills could certainly use some improvement. A host of teachers have been appointed who have either accidentally or deliberately harmed their students.
Employers are liable for any harm that their employees cause whilst that employee is acting within the course of their employment. These acts can include bullying, harassment, discrimination or violence. If an employee is acting in the course of their employment 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 would surely be argued that it would not have been reasonable to predict that this could occur and therefore they can be excused from failing to put in place the necessary safeguards. However, simply claiming that the position is ‘cursed’ just won’t cut it in court!