The Gazette 1990

GAZETTE

nua

february

1990

ation recommending that schools

take out accident insurance for

pupils playing rugby, but at the time

of the plaintiff's accident the

school had not decided on what

sort of insurance was required and

how it was to be obtained. The

plaintiff brought an action against

the school's trustees alleging that

the school had been negligent in

failing (i) to take reasonable care for

the plaintiff's safety on the rugby

field, in that the school had failed

to coach or instruct the plaintiff in

proper tackling techniques, (ii) to

insure the plaintiff against acci-

dental injury and (iii) to advise the

plaintiff's father of the risk of

serious injury in rugby, of the need

for personal accident insurance for

the plaintiff and of the fact that the

school had not arranged such insur-

ance. The plaintiff claimed dam-

ages for pain, suffering and loss of

amenity, loss of earnings and the

cost of future assistance.

The Queen's Bench Division

dismissed the plaintiff's claims.

The court held that on the facts the

school was not negligent in its

coaching or teaching of rugby and

it was not liable for the plaintiff's

injuries since they were the result

of an accident rather than negli-

gence on anyone's part. The Court

held that there was no general duty

arising simply from the relationship

between the school and its pupils

requiring the school to insure its

pupils against accidental injury or

to protect the pupil's economic

welfare by insuring them because

such a duty would be in excess of

the school's obligation to educate

and care for pupils and would be

wider than the duty imposed in a

school in its position in

loco

parentis.

Similarly, a school was

under no duty to advise a parent of

the dangers of rugby football or of

the need for personal accident

insurance, just as a parent was

under no duty to insure if he was

advised to do so. Furthermore, the

plaintiff's school had never

assumed legal responsibility for

advising on the need for insurance

or for insuring its pupils, since it did

not hold itself out as having the

expertise to advise parents on

insurance or to deal with insurance

itself, and there was no evidence

that the plaintiff's father had relied

on the school for such advice.

F R E E L E G A L A I D : D A I L

MO T I ON

Mr. Kavanagh TD moved a motion

in the Dail on Private Members'

Business on February 20, 1990

that Dáil Éireann should condemn

the failure of the Government to

provide adequate resources to

enable the civil legal aid scheme to

be properly developed and ex-

panded. He called on the Govern-

ment to enact the relevant

legislation to place the civil legal aid

scheme on a statutory basis, based

on the principle that all those in

need of civil legal aid but who

cannot afford it would have access

to it.

Mr. Kavanagh referred in his

speech to the Pringle Committee,

and the

JoseyAirey

case. He stated

that there never was a truly nát-

ional legal aid service; the service

had been strangled at birth. The

public service recruitment embargo

had a disastrous effect on the

operation of the legal aid scheme,

according to Mr. Kavanagh, which

prevented the Free Legal Aid Board

from maintaining even the limited

level of service which the Board

initially achieved.

The Minister for Social Welfare,

on behalf of the Minister for

Justice, stated that the Govern-

ment had made provision to

increase the grant-in-aid to the Free

Legal Aid Board by some 25 per

cent - which should enable the

Board to recruit 20 additional staff

including seven solicitors and 13

administrative staff.

The Minister stated that the main

reason why cases before tribunals

are excluded under the scheme

was to discourage a growing trend

towards "legalism" in tribunals

which were originally and deliber-

ately designed to be informal and

"non-legal" for settling disputes.

On the use of private practition-

ers, the Minister stated that he was

not totally opposed to the use of

private practitioners and there were

situations in which it may be

possible to make use of private

practitioners in the operation of the

scheme. Cases involving adjourn-

ments of legal aid proceedings and

the more efficient use of money

and staff resources in servicing the

Legal Aid Board's 19 part-time law

centres were instanced

examples where the private

practitioner could contribute.

A considerable amount of

drafting work had in fact been done

in relation to the establishment of

a statutory civil legal aid scheme

but the Minister regretted that it

had not been possible up to now to

introduce a Legal Aid Bill. Legisla-

tion was promised "as soon as

possible".

Mr. Flanagan TD asked the

Minister to put a time scale on the

placing of legislation before the

House. He referred to the concept

of a small claims court which

would deal with cases more quickly

and less expensively.

Mr. Shatter TD stated that the

record of how the Government had

dealt with the civil legal aid scheme

was utterly appalling.

Mrs. Fennell TD referred to the

fact that the lack of the legal aid

service meant that couples often

with dreadful emotional marriage

problems had no means of escape

or relief. Mr. O'Dea TD stated that

the motion overlooked the fact that

three was another legal aid system

in operation - the criminal legal aid

scheme - which cost the State

£2.5 million in 1989 and would

cost £2.75 million in 1990.

Mr. D. Ahern TD stated that one

of the major flaws of the scheme

was the fact that no provision was

made for the taking of test cases

on various issues which came up

from time to time.

Mr. P. McCartan TD argued that

legal aid as an institution and as a

right was essential to the fight

against poverty in this State. Mr.

Rabbitte, TD, saw the civil legal aid

scheme as a method of formulating

an attack on poverty. Mr. Sherlock

TD argued that every person should

have the opportunity to assert his

or her right.

Mr. Power TD, Mr. Spring TD, and

Mr. Kemmy TD also spoke.

The Government's amendment

which noted,

inter alia,

the increase

in the grant-in-aid to the Civil Legal

Aid Scheme, was carried.

F A I R T R A D E

C O MM I S S I O N : R E P O R T

ON L E G A L S E R V I C E S

The following comments made by

Mr. D. O'Ma Hey, Minister for

Industry & Commerce,

at the

Annual Dinner of the Limerick Bar

Association, 9th March, 1990, will

be of interest to members of the

profession.