The Gazette 1984

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GAZETTE SEPTEMBER 1984
The school authorities ought to have made the wall safe
or put up railings or netting in front of it, or supervised the
children properly in the playground.
The Court of Appeal reversed. The Court described the
wall as being "of the commonest type",84 and considered
that, because it never occurred to any of the parents
before the plaintiffs accident that the wall was
dangerous, it would be wrong to hold the school
authorities liable85. The earlier accidents, said Lord
Denning M.R., were "just the ordinary sort of thing
which happens in any playground. They do not show that
the wall was dangerous".86
The Court of Appeal's decision has received some
forcibly expressed support87, but it can be argued that it
was unduly lenient. Who could agree with Salmon L.J.'s
description of the accident as "the sort of chance which
might be described as one in a million"88 ? Perhaps if the
children had been consulted as to their view of the wall's
safety, this would have been more helpful than asking
their parents.
Conclusion
This review of the cases in this country and abroad
indicates that "school negligence" is one aspect of
negligence law which has remained largely unaffected by
the general movement, overt and covert, towards strict
liability. It seems that this subject, already under public
scrutiny and discussion, may become increasingly
controversial as time progresses.* •
* This article is written in a personal capacity.
Footnotes
55. Unreported, Supreme Court, 29 May 1973 (61/64-1971).
56. Cf. pp. 4-5 of FitzGerald C.J.'s judgment. Liability was also
imposed on the teacher in charge, but the basis of liability was not
spelt out.
57. [1969] 3 All E.R. 746 (H.L.), reversing 67 L.G.R. 53 (C.A., 1968).
58. [1969] 3 All E.R. at 750.
59.Id., at 752. Lord Reid concurred with Lord Pearson.
60.Id., at 748.
61.Id.
62. [1955] A.C. 549 (H.L. (Eng.)).
63. [1970] 1 All E.R. 535 (C.A., 1969), reversing [1969] 2 All E.R. 807
(Hinchcliffe J.). See also Barnes -v- Hampshire Co. Co.. [1969] 3 All
E.R. 746 (H.L.), reversing 67 L.G.R. 53 (C.A., 1968), discussed
supra.
64. [1969] 2 All E.R., at 810-811.
65. [1970] 1 All E.R., at 538-539.
66. Cf. id., at 537. See the quotation set out in fn. 86, infra.
67. 17 A.L.R. 408 (High Ct. of Australia, 1977).
68. Cf. H. Luntz, D. Hambly & R. Hayes, Torts: Cases and Commentary,
431 (1980).
69. 82 D.L.R. (3d) 701 (Sask. Q.B.. Hughes J., 1977).
70. Id., at 706. See also Edmonston-v- Bd. of Trustees for Moose Jaw
School District No. I.[1920] 3 W.W.R. 979 (Sask. C.A., 1920). Cf.
Boryszko -v-Bd. of Education of City of Toronto and Bennett-Pratt
Ltd.. 33 D.L.R. (2d) 257 (Ont. High Ct., Spence J., 1962).
71. Williams -v- Eady. 10 T.L.R. 41 (C.A., 1893).
72. Smith -v- Martin. [1911] 2 K.B. 775.
73. Cf. B. McMahon & W. Binchy, Irish Law of Torts187, 245 (1981).
See also P. North, Occupiers' Liability,68-70 (1971).
74. Cf. McKeon -v- Flynn. 69 I.L.T.R. 61 (Circuit Ct., Judge Sheedy,
1934), Fryer -v- Saiford Corporation. [1937] 1 All E.R. 617 (C.A.)
(especially at 622, per Scott L.J.). See also Morris -v- Carnarvon Co.
Co., [1910] 1 K.B. 159 (K.B. Div., 1909), afTd [1910] 1 K.B. 840
(C. A.). In the King's Bench Division, especially per Phillimore J., at
167, there was strong emphasis on the fact that the defendants had
"invited" the plaintiff to be on the school premises. The Court of
Appeal applied a broader general concept of negligence, with less
emphasis on. the "occupation" element in determining liability.
In Canada it has been held that the duty of care owed in the school to
a pupil is "higher than that ordinarily owing by an invitor to an
invitee": Cropp -v- Potashville School Unit No. 25.81 D.L.R. (3d)
115, at 118 (Sask. Q.B., Noble J., 1977) (reversing previous
authorities).
75. Cf. Bohane -v- Driscoli. [1929] I.R. 428 (Sup. Ct.), Courtney -v-
Masterson. [1949] Ir. Jur. Rep. 6 (High Ct., Black J.), in Boryszko
-v- Bd. of Education of City of Toronto and Bennett-Pratt Ltd.. 33
D.L.R. (2d) 257 (Ont. High Ct., Spence J., 1962) where a child
returned from home to play in the school playground after having
had his evening meal, he was held to be a licensee: cf. id., at 262-263.
76. See, e.g. Rich -v- LC.C.. [1953] 2 AH E.R. 376 (C.A.).
77. Supra, fn. 3.
78. Unreported, Supreme Court, 13 July 1966 (5-1965).
79. P.3 of O Dálaigh C.J.'s judgment. See also Portelance -v- Bd. of
Trustees of Roman Catholic Separate School for School Section No. 5
in Township of Grantham. 32 DLR. (2d) 337 (Ont. C. C.A., 1962) a
Canadian decision very similar in its facts and legal holding to
Lennon -v- McCarthy.
80. [1970] 1 All E.R. 535 (C.A., 1969), reversing [1969] 2 All E.R. 807
(Q.B. Div., Hinchley J.).
81. [1969] 2 All E.R., at 810 (per Hinchcliffe J.).
82. Id.
83. Id.
84. [1970] 1 All E.R. 535, at 536 (C.A., per Lord Denning M.R., 1969).
85. Cf. id., at 537(per Lord Denning M.R.), at 538 (per Salmon L.J.)and
at 539 (per Cross L.J.).
86. Id., at 537.
87. Cf. T. Weir, A Casebook on Torts. 99 (4th ed., 1979):
"Things have come to a pretty pass when it can solemnly be
argued that a local authority should put a fence round a
wall . . . ."
88. [1970] 1 All E.R., at 537.
Comme nt (continued from page 183)
describe themselves, either within or outside the
profession, as specialists in those areas. If such descrip-
tions are to be permitted should mere attendance at
courses be a sufficient entitlement for the description of
specialist or should there be some form of certification?
If there is to be certification does this mean that only those
who are certified in a particular area of law should be
entitled to practice in it. It will readily be seen that in a
small legal community such as ours any enthusiasm for
the introduction of Mandatory CLE on a profession-wide
basis should be tempered with discretion. •
Abolition of Land Commission
(continued from page 181)
some reduction in the inroads of bureaucracy. One fears,
at the same time, that the bureaucracy will remain,
merely administered by a different branch of the
Department of Lands. The profession may also welcome
the abolition of the system of paying professional fees in
Land Bonds, although high interest rates have at least
lessened the impact of this practice.
The profession would, however, be very much the loser
if the Land Commission Records Branch were to be
closed or its archive material to be made unavailable.
Uncountable title problems, wholly unrelated to current
Land Commission activities, have been solved through
the Land Commission's archives and the assistance of its
ever helpful and patient staff. Let us hope that at least this
much can remain. •
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