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

Finally, it is worth noting that in the Canadian decision

Bourgeault

-v-

Board of Education, St. Paul's Roman

Catholic School. District No.

, 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."

(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

, within access of the pupils, or a pupil may

be sent on a risky task that is beyond his or her abilities

(6) Structural Dangers.

A school manager or principal may be liable as

occupier of the premises where there is a structural

danger

. The pupils are sometimes regarded as invitees

but the language used on this question is sometimes not

exact and criteria more appropriate to a licensor-licensee

relationship have been invoked

. 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

The language of the occupiers' cases was used in

Courtney

-v-

Master son

, 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

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

An interesting issue regarding structural dangers arose

in the English decision of

Ward

-v-

Hertfordshire County

Council*

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"

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"

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."

!186