The Gazette 1984

GAZETTE

SEPTEMBER 1984

Schools' Liability for Negligence

Part II

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

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.

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

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

and Pearson

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."

He considered

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

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

, 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."

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

, but Lord

Denning M.R. seemed unsympathetic to this argument

Cross L.J. did not address the issue.

The High Court of Australia considered the question in

far greater detail in

Geyer

-v-

Downs

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

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