161 / 322
GAZETTE
JULY/AUGIJST 19S4
Schools' Liability for Negligence
Part 1
by
William Binchy, B.A., B.C.L., LL.M., B.L.
Research Counsellor, The Law Reform Commission
T
HE question of liability of schools in negligence has
given rise to much litigation
1
. It is scarcely surprising
that from time to time accidents happen in schools.
Where children are concerned it is not the case that there
is safety in numbers. Wherever children congregate there
is the risk that they may be tempted to do many things —
to climb a wall, throw a stone, slide down the bannisters—
that they would be far less likely to do on their own.
School managers know this well. They are faced with the
unenviable task of ensuring, as best they may, that
children attending school are not injured from lack of
supervision or from other sources of danger that may
arise during the school day.
When children who are injured at school sue the school
authorities, the courts are presented with some difficulties
in applying the negligence standard. Too low a standard
would clearly leave students open to unwarranted
dangers; on the other hand to set the standard of care at a
very high level might not be in the interests of school
children in the long run. As a Canadian Judge has
counselled:
"It must . . . . be required that one of the most
important aims of education is to develop a sense of
responsibility on the part of pupils, personal
responsibility for their individual actions, and a
realisation of the personal consequences of such
actions."
2
A very general guiding principle was expressed by Lord
Esher in
Williams
-v-
Eady
i
that:
"the schoolmaster [is] bound to take such care of his
boys as a careful father would take of his boys
"
Although this statement has been quoted widely with
approval in several decisions in this country
4
and abroad
5
,
it has been criticised for being "unrealistic, if not
unhelpful",
6
especially where the number of pupils is
high. The problems of care and control in a school bear
some
resemblance to those confronting a parent in the
home but they are far from identical. It is possible that in a
future decision an Irish court will drop the reference to the
"careful father" (or "careful parent") and stress the fact
that it is the standard of the reasonable school teacher or
manager which should prevail.
In this article we will consider the liability of schools
under six headings:
(1) Negligence in instruction;
(2) Supervision in school playgrounds;
(3) Injuries sustained off the premises;
(4) Supervision outside hours;
(5) Other acts of negligence;
(6) Structural dangers.
(1) Negligence in Instruction
An allegation of negligence may arise where accidents
take place during the course of instruction by teachers.
Most of the cases have been concerned with injuries
suffered during gymnastic and sports training, where the
allegations centre a r ound dangerous exercises,
inadequate equipment and lack of supervision. As one
judge recently pointed out:
"The potential for danger in these cases can be
easily imagined. Young students are apt to try
different and more daring manoeuvres than a more
mature person would permit."
7
In the Supreme Court decision of
Mulligan
-v-
Dohertf
in 1966, the plaintiff was a seventeen-year-old girl who
was injured when preparing a new gymnastic exercise.
The exercise had been demonstrated by the physical
training teacher, who had also supervised one girl in
repeating the exercise. The teacher then went to another
part of the gymnasium to instruct another class. In her
absence other girls in the class repeated the exercise
without mishap but the plaintiff toppled from the bars
and injured her back.
The gymnastic exercise involved a somewhat elaborate
descent down wall bars, with the hands changing bars
alternately in descending order. The plaintiff did not
exactly remember what the teacher had done in the
demonstration and released both hands simultaneously,
resulting in her fall.
The plaintiffs case in negligence was based on
allegations that there had been inadequate instruction
and that the teacher had failed to remain with the class
until each of the pupils knew the correct sequence of
movements for the safe performance of the exercise.
Henchy J. directed the jury to hold that the defendants
were not liable and the Supreme Court affirmed. The
Supreme Court regarded the exercise as a "routine" one
which a seventeen-year-old girl of ordinary intelligence
"could not have failed to apprehend . . . ."
10
Chief Justice
O Dálaigh considered that no one could reasonably have
foreseen that such a girl would fail to understand the safe
way of carrying out the exercise, and would substitute her
own patently risky mode of descent so as to require that
the teacher remain at hand to supervise further:
"Something might be said for such a view in the case
of young children; but a woman over 17 years of age
is a person whose conduct in performing a simple
gymnastic exercise might reasonably be expected to
be intelligent and sensible . . . . ""
In the High Court jury case of
Smith
-v-
Jolly et al.
12
in
May 1984, a 14-year-old school girl sustained serious
injury when struck by a 4 kilo shot during a school sports
153