The Gazette 1984

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GAZETTE JULY/AUGIJST 1984
playground, when the boys came out of school at the end
of the day, they found the material unguarded. One of the
boys threw a portion of it at the plaintiff, who was also
attending the school, injuring his eye.
The plaintiffs action succeeded at trial, and the Court
of Appeal affirmed. Vaughan Williams L.J. shared Bray
J.'s concern that the case was close to the line. He went so
far as to say that he "did not know whether the jury were
influenced by sentimental sympathy in favour of the
boy."48 Nevertheless, the jury from their answers must
have found that the barrel was "a dangerous thing to
leave where it was left."49
Jackson's case must be contrasted with Rich -v-
Z..C.C.,50 in 1953. The plaintiff, a schoolboy attending the
defendant's school lost his left eye after a piece of coke
had been thrown at him in the school playground by
another pupil. Owing to difficulties during and after the
war in obtaining regular supplies of fuel, it was essential
for the school authorities to keep at the school quantities
of fuel in hand in excess of the amount that could be
stored in the school's storage places. At the time of the
accident there was an unfenced heap of coke in the
playground amounting to three tons.
The trial judge found that the school was providing
adequate supervision at the time of the accident. A
teacher was in attendance,51 accompanied by a helper.
The trial judge held the school liable, however, because it
had failed to resolve the dilemma presented by the coke,
either by removing it from the playground or by taking
steps to ensure that it was no longer accessibly to the boys.
The Court of Appeal reversed, considering that, once
the charge of negligent supervision had been rejected by
the trial judge, the plaintiffs case had collapsed. The
option of removing the coke from the playground was not
a realistic one; neither, in the Court's view, was the option
of ensuring that the coke should no longer be accessible to
the boys. Hodson L.J. said:
"The impracticability of keeping children from
access to missiles by the erection of physical barriers
has only to be stated to be reasonably obvious .. ,"52
Morris L.J. considered that:
"It cannot be said that it is the duty of a reasonable,
careful and solicitous parent to endeavour to put a
child into a straight jacket or to seek to remove from
his reach anything that may conceivably be used by
him to injudge his mischievous propensity, always
provided that reasonable, proper and adequate
supervision over the child is exercised."53
Finally, it may be noted that in several other cases54
where a sudden danger arose during playtime which
resulted in injury to a child but which was of its nature
difficult for the school authorities to foresee or provide
against, the courts have not imposed liability.
Part 2 of this article will appear in the September issue.
Footnotes
1. See generally B. McMahon & W. Binchy, Irish Law of Torts, 184-187
(1981) (and the reference cited at 184, fn. 211), B. McMahon & W.
Binchy, Casebook on the Irish Law of Torts, 182-184 (1983), Barnes,
Tort Liability of School Bounds to Pupils, ch. 7 of L. Klar ed.. Studies
in Canadian Tort Law (1977), Vacca, Teacher Malpractice, 8 U.
Richmond L. Rev. 447 (1974), Seitz, Tort Liability of Teachers and
Administrators for Negligent Conduct Towards Pupils. 2o Clev.
Marshall L. Rev. 551 (1971), Seitz, Legal Responsibility Under Tort
Law of Schodl Personnel and School Districts as Regards Negligent
Conduct Toward Pupils. 15 Hastings L. J. 495 (1964).
2. Schade -v- School District of Winnipeg No. I & Ducharne. 19 D.L.R.
(2nd) 199, at 305 (Manitoba C.A., per Schultz J. A., 1959).
3. 10 T.L.R. 14, at 42 (C.A., 1893). See also Ramsey -v- Larsen. Ill
C.L.R. 16, at 27 (per Kitto J., 1964) (". . . . such precautions for his
safety on the occasion in question as a reasonable parent would have
taken in the circumstances").
4. Lennon -v- McCarthy, unreported. Supreme Court, 13 July 1966(5-
1966), per O Dálaigh C.J., at p. 2 of the judgment.
5. E.g. Ricketts -v- Erith Borough Council. [1943] 2 All E.R. 629, at 631
(K.B. Div., Tucker J.), Rawsthorne-v- Ottlev. [1937] 3 All E.R. 902,
at 904 (Hilbery J.). Canadian decisions applying the principle are
cited by Carson, Note. 3 Ottawa L. Rev. 359, at 361, fn. 8 (1968).
6. Beaumont -v- Surrey Co. Co.,112 Sol. J. 704, at 704 (per Geoffrey
Lane J., 1968). See also Board of Education -v- Higgs. [1960]S.C.R.
1974, at 180-181 (per Ritchie )., 1959), McKay -v- Bd. of Govan
School Unit No. 29. [1968] S.C.R. 589, at — ( per Ritchie J.), see also
H. Luntz, D. Hambly & R. Hayes, Torts: Cases and Commentary,
429 (1983), who consider that the "careful father" test is:
"Somewhat unreal in the case of a schoolmaster who has the
charge of a school with more than 400 children, or a master
who takes a class of 30 or more children. What may be a
useful guide applicable to a village or a small country school
cannot be of direct assistance in the case of a large city or
suburban school with some hundreds of children attending
it."
More generally, see Hanson Hoyano, The "Prudent Parent": The
Elusive Standard of Care, 18 U. Br. Col. L. Rev. 1 (1984).
7. Long -v- Gardner. 144 D.L.R. (3d) 73, at 81 (Ont. High Ct , Smith J.,
1983).
8. Unreported, Supreme Court, 17 May 1966 (52-1965).
9. Page 3 of O Dálaigh C.J.'s judgment.
10. Id.
11. id., pp. 3-4.
12. High Ct , O'Hanlon J. with jury, 17-18 May 1984, reported in the
'Irish Times', 18 May 1984, p. 8, cols. 4-5, and 19 May 1984, p. 18,
col. 5.
13. 'Irish Times', 18 May 1984, p. 8, cols. 4-5.
14. As reported in the 'Irish Times', 19 May 1984, p. 18, col. 5.
15. [1936] 1 All E.R. 115 (C.A.).
16. Cf. the headnote to the report, id., at 115.
17. Id., at 116.
18. [1952] 2 All E.R. 789 (C.A., 1952).
19. Id., at 796. Cf. Mr. Justice Vaisey's striking assertion in Suckling -v-
Essex Co. Co., 'The Times', 27 January 1955 (quoted by Hanson
Hoyanao, supra, fn. 6, at 22) that:
"[I]t is better that a boy should break his neck than allow
other people to break his spirit."
20. 81 Sol. J. 630 (K.B. Div., Porter J., 1937).
21. Id., at 630.
22.63 T.L.R. 546 (C.A., 1947), affirming 63 T.L.R. 239 (K.B. Div.,
Byrne J., 1947).
23. 63 T.L.R., at 239 (per Byrne J.).
24.48 T.L.R. 368 (K.B. Div., 1932).
25. Id., at 369.
26. Cf. Boivin -v- Glenavon School District. [1937] 2 W.W.R. 170 (Sask.
C.A.), Gard -v- Duncan School Trustees, [1946] 2 D.L.R. 441
(B.C.C.A.), Thorton -v- S. District No. 57 Bd. ofS. Trustees. [1976] 5
W.W.R. 240, 73 D.L.R. (3d) 35 (B.C.C.A.), varied (sub nom.
Thornton -v- 5. District No. 57 Bd. of Trustees) [1978] 1 W.W.R. 607,
83 D.L.R. (3d) 480 (Sup. Ct. Can.), Butterworth -v- Colegiate
Institute Board of Ottawa, [1940] 3 D.L.R. 466 (Ont. Sup. Ct.,
Mackay J.), Eaton -v- Lasuta, 75 D.L.R. (3d) 476 (B.C. Sup. CT.,
Murray J., 1977).
27. 123 D.L.R. (3d) 1 (Sup. Ct. Can., 1981), rev'g 5 C.C.L.T. 271 (Ont.
C.A., 1978), restoring 2 C.C.L.T. 269 (Ont. High Ct., O'Driscoll J ).
See also Boese -v- Bd. of Education of St. Paul's Roman Catholic
Separate School District No. 20, 97 D.L.R. (3d) 643 (Sask. Q.B. Sirois
J., 1979) (liability imposed where obese and inexperienced 13-year-
old was required to make a vertical jump from height of seven feet
after he had expressed anxiety over the exercise), Piszel-v- Board of
Education for Etobicoke, 77 D.L.R. (3d) 52 (Ont. C.A., 1977)
(inadequate protection from mats during wrestling class). Cf.
Matheson-v- Governors of Dalhouse College & University, 25
C.C.L.T: 91 (N.S. Sup. Ct. Trial Div., Macintosh J., 1983).
28. [1975] 5 W.W.R. 135, 58 D.L.R. (3d) 311 (Man. Q.B.), afTd [1976] 2
W.W.R. 577, 64 D.L.R. (3d) 338 (Man. C.A. 1975). The Court of
Appeal decision was based as well on evidence of negligence other
than that of the instructor's failure to tell his students to wear
goggles.
(footnotes continued p. 161)
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