Case No: B3/2011/3088
Neutral Citation Number: [2012] EWCA Civ 1135
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBOROUGH COUNTY COURT
(DISTRICT JUDGE CUTHBERTSON)

Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 13th July 2012
Before:

LORD JUSTICE PILL
LORD JUSTICE RIMER
and
LADY JUSTICE BLACK

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	HAMMERSLEY-GONSALVES	
Respondent	
	
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REDCAR & CLEVELAND BOROUGH COUNCIL	

Appellants	
			
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Mr D Edwards (instructed by Plexus Law) appeared on behalf of the Appellant.
Mr C Williams (instructed by Atha & Co) appeared on behalf of the Respondent.
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Judgment
Lord Justice Pill:

1.	This is an appeal from a decision of District Judge Cuthbertson dated 9 November 2011, whereby in a claim for damages for personal injuries he gave judgment for Samuel Hammersley-Gonsalves, the respondent, in the sum of £21,000 with costs against Redcar & Cleveland Borough Council, the appellants.  Damages were agreed subject to liability and approved by the court.  The appellants operate Lawrence Jackson Secondary School in the borough.  It is a school which prides itself on the sports facilities available.  

2.	When the accident happened on 24 October 2007 the respondent was almost 12 years old and a pupil at the school.  It was submitted that the school authorities failed adequately to supervise a golf lesson in which the respondent was taking part as a member of a group of 22 pupils of similar age.  The respondent sustained a facial injury when a golf club was swung by another pupil in the group, Matthew Wilkes, and the club struck him.

3.	The Master in charge of the pupils at the material time was Mr M Fowle, a PE teacher.  His evidence was that the boys were on their seventh golf lesson, having previously had six indoor lessons.  Mr Fowle said that it was a well-behaved class whose members listened to what he said and had learned well.  He said that he had given safety instructions at the start of each lesson, including the seventh.  The plan for the seventh lesson was that the boys would go round a golf course of nine holes which Mr Fowle had made up in the school grounds.  En route to the course, each boy had a golf club and ball.  Mr Fowle told them to hold the club halfway down the shaft and carry the ball in the other hand.  They were told not to swing the club or hit anything until told to do so.  The boys moved outdoors in single file.  Mr Fowle said he could see them all.  Had any pupil misbehaved he would have been able to see it, but they were behaving impeccably.  

4.	Mr Fowle continued: 

“However, completely out of the blue Matthew suddenly swung his golf club.  It was totally unexpected and it hit Sam.  He hit him with the follow-through.  It clearly took Sam by surprise, as he was standing close and therefore obviously did not expect Matthew to swing his club.  Both came to me.  Matthew had his arm around Sam and was apologising and very upset.  I said: ‘What have you done that for?  I told you not to swing the club,’ and all Matthew could say was: ‘I’m sorry’.”

Matthew’s evidence was: 

“We all ran onto the field.  I was stupid and put my ball on the ground and swung.  I was standing near as I took my shot.  I missed the ball and slipped.  It hit Sam in the face.  I dropped my club and took him to the medic.”

The respondent’s evidence was that he really did not see what had happened.  As he turned to talk to Matthew, Matthew was swinging the club, and he was caught in the face.

5.	Evidence was given by Ms Page, Deputy Headmistress of the school.  She said that the boys were responsible children.  The policy of the school was to empower children so far as that is reasonable.  In her opinion, one teacher could sufficiently and adequately supervise 20 pupils.   Under cross-examination Mr Fowle said that he was at the back of the group, and it was impossible to see if anyone dropped a ball.  He saw no-one taking a swing until for a fraction he saw Matthew’s club reach shoulder height.  He did not have time to shout “Stop!”  

6.	The judge accepted that Mr Fowle had told the boys how to hold the club, and that they were not to swing it.  The judge found that Mr Fowle was three or four metres behind the last boy.  He found that a golf club is a dangerous piece of equipment if not handled properly.  He found that Matthew had lifted his club to shoulder height and swung it, slipped on the wet grass, and the club hit the respondent.  The judge found that Mr Fowle “could not and did not see what his pupils were doing”.  At paragraph 17 the judge stated: 

“Indeed he could not see, which is why I find this as a fact, because as he rightly says, he could not see through 22 pairs of legs very easily and he did not know therefore what his pupils were doing when they walked out and arrived at that field, however many seconds it might be before him.”

The judge added that: 

“…not to see what the pupils were doing and whether they were fulfilling instructions given, bearing in mind their age, notwithstanding the previous history is, in my judgment, an inadequate standard of supervision and care.”

7.	The judge found that if Mr Fowle had seen a boy raising a club his natural reaction would have been to shout, even if it made no difference.  The fact that Mr Fowle had not shouted, the judge held: 

“...is further corroborative evidence that on the balance of probabilities he did not see even that part of the accident.”

8.	I read that finding, and Mr Williams for the respondent agrees, as a finding that Mr Fowle did not see the swing.  The judge said at paragraph 14 that it was “left hanging in the air” whether a shout would have made a difference.  The judge concluded that Mr Fowle: 

“... did not adequately or properly supervise.  He did not see what the children were doing.  He could not see what they were doing, and on that basis I am satisfied that the standard of care has not been reached which is a reasonable standard by the school.”

Negligence was established. 

9.	On behalf of the appellants, Mr Edwards submits that, having regard to the instructions given, the level of supervision cannot be criticised, with pupils who are in the 11 to 12 age group and are normally well behaved.  The judge did not accept that anyone else swung a club.  There was no evidence of previous accidents involving golf clubs.  No criticism was made at the hearing of the staffing ratio, and Mr Williams has confirmed that criticism of the staffing ratio has not been and is not a part of the respondent’s case.  

10.	The first issue is whether the supervision was negligent, in that the teacher could not see the actions of all the pupils at one time.  A spontaneous piece of misbehaviour by a pupil, such as that by Matthew, might go unobserved until it was too late.  I have no difficulty in accepting the judge’s findings that Mr Fowle could not see the actions of every pupil at every moment.  The basis for the finding against the appellants was that, had Mr Fowle kept proper lookout or positioned himself differently, the accident would not have happened.  In seeking to uphold the conclusion of the judge, Mr Williams relies on the judge’s finding that Mr Fowle could not and did not see what had happened.  That is not challenged on this appeal; the question is whether that justifies a finding that Mr Fowle was negligent.

11.	I have difficulty in seeing how this claim can succeed without an allegation in relation to the staffing ratio, which has advisedly not been made.  It appears to me obvious that however observant a teacher is, however careful the lookout he is keeping, he could not and could not be expected to see every action of each of 22 boys walking in crocodile fashion as these boys were.  On the judge’s findings, I do not consider that a lack of adequate or proper supervision has been established.  The boys were 11 to 12 years old, had had previous golf instruction, were well-behaved generally and on this occasion.  There is no background of bad behaviour.  The action of Matthew was wholly unexpected.  I do not consider that Mr Fowle’s failure to see the quick and unexpected swing gives rise to a finding of negligence against him.  He could not be expected to see every action of every member of the group, wherever he positioned himself.

12.	Although the point has not been argued, I do add a finding in relation to the staffing ratio.  In the circumstances described, I do not consider that closer supervision of this group by having one or more extra teachers standing close enough to observe every action of every member of the group was reasonably required.  Given their age, the instruction they had received, and the activity being followed, the appellants’ system, as applied by Mr Fowle, was reasonable and did not fall below the standard reasonably required.

13.	I mentioned the question of causation and the judge’s references to it.  Even if Mr Fowle’s failure to observe the swing was negligent, it would have been necessary for the respondent also to establish that the failure was causative of the accident that actually happened.  With respect, the judge has not adequately addressed that question in the paragraph cited.  There is no finding that on a balance of probabilities, action by Mr Fowle would have prevented the accident.

14.	Accordingly, I would allow this appeal.  I add only that this was an unfortunate accident and one feels sympathy for a boy who received the unpleasant injury the respondent did, without any fault whatever on his part.  However, in my judgment the appellants cannot be held responsible for the accident which happened.

Lord Justice Rimer:

15.	I agree.  It was no part of the claimant’s case that the school was at fault in supervising a golf lesson by just one of its members of staff, nor, therefore, did or could the judge find that the school was at fault in that respect.  The judge found that Mr Fowle did not see the incident causing the injury to the claimant.  The judge did not, however, find that his inability to do was because of any negligence on his part, nor was there any basis for doing so.  It followed that there was no basis for any finding that Mr Fowle was in breach of the duty of care he owed to the claimant.  

16.	I too would allow the appeal.

Lady Justice Black:

17.	I agree with both my Lords, Lord Justice Pill and Lord Justice Rimer.

Order:  Appeal allowed.