The Gazette 1984

GAZETTE

SEPTEMBER 1984

school hours — a duty which the jury had already held had been breached. Stephen J. said that: "The duty which a schoolmaster owes to his pupil arises from the relationship between them and its temporal ambit will be determined by the circumstances of the relationship on the particular occasion in question." In an important passage, he stated that: "It is for schoolmasters and for those who employ them . . . . to provide facilities whereby the school- masterly duty can adequately be discharged during the period for which it is assumed. A schoolmaster's ability or inability to discharge it will determine neither the existence of the duty nor its temporal ambit but only whether or not the duty has been adequately performed. The temporal ambit of the duty will, therefore, depend not at all upon the schoolmaster's ability, however derived, effectively to perform the duty but, rather, upon whether the particular circumstances of the occasion in question reveal that the relationship of schoolmaster and pupil was or was not then in existence. If it was, the duty will apply. It will be for the schoolmaster and those standing behind him to cut their coats according to the cloth, not assuming the relationship when unable to perform the duty which goes with it." The concept of "assuming the relationship" is not entirely dissimilar to that which is at the base of the Hedley Byrne principle: to the man who says that he simply cannot discharge the obligation the riposte of the court is that he should have thought of that before undertaking it in the first place. Applied to the question of the playground supervision before school hours, the lesson of Geyer -v- Downs is clear: if a school opens its gates to children before school hours it must supervise them adequately. If it cannot provide the necessary supervision then it must close its gates to the children or risk the consequences. Whether this decision encourages or discourages the prevention of accidents has been questioned 68 . Finally, it is worth noting that in the Canadian decision of Bourgeault -v- Board of Education, St. Paul's Roman Catholic School. District No. 20 69 , in 1977, a school was held not liable for injuries sustained by a fourteen-year- old pupil who fell off a ladder when hanging decorations in the gymnasium for the Christmas concert. The girl had remained on in the school after classes had been completed and after she had been told to go home. Hughes J. said that he had considered: "whether a duty rested with the defendant to have a member of the teaching staff responsible for touring the school premises after dismissal of classes, to be sure that all students left the building before he or she leaves as the last person, other than the caretaker, to depart the premises . . . . While the age and grade of children might prompt different responses as to whether such a duty can be said to exist, I do not believe it can be said any such duty was owed to a student of 14 years of age . . . . and who had received, when possessed with ability to comprehend, instructions to depart for home." 70

(5) Other Acts of Negligence Other acts of negligence may occur in the course of a school day. Two examples will suffice: a teacher or other school employee may leave dangerous things, such as phosphorus 71 , within access of the pupils, or a pupil may be sent on a risky task that is beyond his or her abilities 72 . (6) Structural Dangers. A school manager or principal may be liable as occupier of the premises where there is a structural danger 73 . The pupils are sometimes regarded as invitees 74 but the language used on this question is sometimes not exact and criteria more appropriate to a licensor-licensee relationship have been invoked 75 . There is an added complication. In cases involving schools the injured plaintiff will frequently be alleging a twofold breach of duty, arguing that there was a structural danger and that the school authorities did not adequately supervise the children, having regard to this danger. In such circum- stances the school authorities' duty as occupiers tends to be clouded with their broader duty in negligence 76 . The language of the occupiers' cases was used in Courtney -v- Master son 11 , where it was held that a barbed wire fence did not constitute a "concealed trap" to a ten- year-old boy. The fence was, however, in a field adjoining the school playground, which was out-of-bounds for the pupils. The case is really one involving an issue of supervision rather than occupation duties. So also in Lennon -v- McCarthy 1 *, the Supreme Court held that the case had rightly been withdrawn from the jury where a nine-year-old pupil playing "tig" in a field adjoining his school playground was struck in the eye by a rebounding hawthorn bush when chasing another pupil. O Dálaigh C.J. rejected the argument that a careful father, looking at the field, would have considered it unsuitable to play in. He stated: "I am wholly unable to accept this view. It is unreal. Its effect would be to proscribe the playing of ordinary simple games like 'tig' in the ordinary surroundings of rural Ireland. What happened here was an accident such as is inseparable from life " 79 An interesting issue regarding structural dangers arose in the English decision of Ward -v- Hertfordshire County Council* 0 , which has already been mentioned. The plaintiff, an eight-year-old boy, fractured his skull when he tripped and fell against a wall while racing unsupervised in the school playground. The wall was made in part of pieces of flint, "with sharp jagged edges" 81 some of which jutted out nearly an inch. The evidence disclosed that flint was widely used in the village and elsewhere. To have rendered the wall safer would have created difficulties in waterproofing. The plaintiffs sister, aged about seven, had also injured herself when she split the back of her head while she was skipping near the same wall. Three former pupils gave evidence that they had been injured by coming in contact with the wall at different times over the previous thirty-five years. At trial Mr. Justice Hinchcliffe had "no hesitation at all" 82 in imposing liability on the school authorities. It seemed to him that:

"if one lets loose young children in a playground of this sort with inherently dangerous walls around it, one is simply asking for trouble." 83

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