The Gazette 1984

GAZETTE

SEPTEMBER 1984 Schools' Liability for Negligence Part II

by William Binchy, B.A., B.C.L., LL.M., B.L. Research Counsellor, The Law Reform Commission (Part I of this article was published in the July/August Gazette at p. 153.)

(3) Injuries Sustained Off the Premises An allegation of negligence may be made against the school where a child is injured off the premises, on account of lack of supervision or because of an inadequate safety system. In Hosty -v- McDonagh Si in 1973, a 10 year-old child was injured by a car when she came through the school gate at lunch time and ran onto the road. Liability was imposed on the school manager for not having a suitable exit from the school, not having it supervised and allowing the plaintiff onto the road unattended. 56 The judgment of FitzGerald C.J. (for the Court) does not expressly state why the child went onto the road or what she should have been doing at the time. In the English decision of Barnes -v- Hampshire County Council 1 in 1969, the House of Lords imposed liability on a school which released a five-year-old child five minutes earlier than the scheduled time for the end of the school day. The child wandered onto a busy road and was injured. The child's mother, who was on her way to the school, would have collected her at the scheduled time had she not been released prematurely. The House of Lords rested its decision on the fact that the child was released early rather than on the failure of the school to ensure that each child was "paired o f f ' with a responsible person who was collecting the child. This latter basis of liability had been rejected by the trial Judge and the Court of Appeal and was abandoned by the plaintiff on appeal to the House of Lords. It is interesting to note that Lords Donovan 58 and Pearson 59 would also have rejected this basis of liability, but Viscount Dilhorne "doubtfed] very much whether a system which permits of the release of a five-year-old from school without supervision while looking for a parent, with the risk that the child will try to go home on its own, -an be described as satisfactory." 60 He considered 61 that it should not be assumed that the trial judge's finding was necessarily one which would be followed should such a system again come under consideration. The liability of a school in this context may extend to injuries sustained by third parties. In Carmarthenshire County Council -v- Lewis 62 a four-year-old pupil at a nursery school got out of the classroom when he was not being supervised and ran through an unlocked gate down a lane into a busy highway. He caused a driver of a lorry to make it swerve so that it struck a telegraph pole, as a result of which the driver was killed. Liability was imposed on the school authorities by the Court of Appeal, on the basis that the lack of supervision by the teacher had been negligent. The House of Lords held that the teacher had not been negligent but still imposed liability on the school authorities because they

ought to have anticipated the danger of a child "escaping" in the absence of supervision, whatever the cause of that absence.

(4) Supervision Outside Hours Clearly it would be wrong to impose on day schools a duty to supervise children day and night: there must be temporal limits to the scope of this duty. Equally clearly, it would seem legalistic and unjust to restrict the duty to the exact limits of school hours. The courts have therefore tried to strike a reasonable balance. In Ward -v- Hertford- shire County Council 63 , an 8-year-old child was injured when she fell against a wall while racing unsupervised in the playground a few minutes before school classes began at 8.55 a.m. In imposing liability, Hinchcliffe J. said: "If it is thought necessary to supervise children at 10.45 a.m., midday and 2.30 p.m., surely it is just as necessary to supervise them between 8.30 a.m. and 8.45 a.m. and 8.55 a.m. . . . In my judgment reasonable supervision was required, not only during the working day, but also when the children were collected together in the playground before the school starts. I do not suggest that there should necessarily be a continuous supervision from 8.15 a.m. onwards, but there should have been supervision from time to time controlling any risky activity of the children having regard to the proximity of this dangerous wall; and really it is not too much to ask that there should be supervision between 8.30 a.m. or 8.45 a.m. and 8.55 a.m. when the supervision might well have been continuous." 64 The judges of the Court of Appeal, reversing Hinchcliffe J., were more anxious to stress the casual irrelevance of lack of supervision at the time of the accident, on the facts of the case, than to address the issue of when a duty to supervise commenced. Salmon L.J. appeared to concede tentatively that a duty to supervise existed before the beginning of school hours 65 , but Lord 1 Denning M.R. seemed unsympathetic to this argument 66 . Cross L.J. did not address the issue. The High Court of Australia considered the question in far greater detail in Geyer -v- Downs 61 in 1977. The case also was concerned with injuries sustained in a play- ground before school opened but at a time when a significant number of children had already assembled. The evidence disclosed that the headmaster had some time earlier given instructions that the children were not to run about or play games before school opened but were to sit down and read or talk quietly. The High Court held that in these circumstances, the school was under a duty of care for the period before !185