THE SUPREME COURT

410/2003

McGuinness J
Fennelly J
McCracken J

Between:

Kenneth Murphy 
Plaintiff/Respondent

AND

County Wexford VEC
Defendants/ Appellants

[Judgment delivered by McCracken J., McGuinness J. concurring.  Fennelly J. dissenting]

Judgment of Mr Justice McCracken delivered the 29th day of July  2004

This is an action by a pupil against his school authorities for damages for personal injuries suffered by him during a lunch period in the school on 7th May 1998.  At the time of the accident the Plaintiff, who was 16 years of age, was with a number of other students in what was known as the recourse area, where 5th and 6th year students could go during the lunch period.  There were about fifty students in the area at the time, and one of them produced a bag of chocolate bars which he offered to share.  Apparently the bag had burst and a good deal of horseplay then ensued during which a number of the pupils, put by the Plaintiff as about nine, started throwing the bars around the room at each other.  The Plaintiff in evidence said that this went on for about ten minutes, although the learned trial Judge felt that that was probably an overestimate.  In the course of the horseplay, one of the bars struck the Plaintiff in the eye causing him serious injuries.  There had been no supervision of any kind by the Appellants on that day in the area where the incident took place.  The learned trial Judge found that the school had been negligent and awarded the Respondent the sum of €50,000.

In its defence, the Appellants pleaded contributory negligence on the part of the Respondent. In opening the case, Counsel for the Respondent said:-

“The plaintiff himself will concede that he may have thrown one or two himself during the period leading up to the injury.  He will freely concede that.

He also said:-

“A full defence is being delivered, including an allegation of contributory negligence alleging that the plaintiff himself indulged in excessive horseplay.  I don’t think the plaintiff will dispute that, as I’ve already said in my opening.”

In fact in giving evidence the Plaintiff did dispute that he had indulged in excessive horseplay.  He said that he did not throw a chocolate bar at anybody, although he threw one onto the ground.  He also said that he moved into the window sill to try to avoid the bars.

The only other witness called on behalf of the Respondent was another pupil, a Mr Kevin Keane.  He gave evidence of taking the Respondent to the Principal’s office after he had been injured, and that he did not come across any teachers until he got to the Principal’s office.  He was not cross-examined as to how far the Respondent had taken part in the horseplay.

At the end of the Respondent’s evidence, Counsel for the Appellants applied for a direction, and stated that he was not going to go into evidence.  As a result, the only evidence which the learned trial Judge had before him was that of the Respondent and of Mr Kevin Keane.  From the evidence of these witnesses it emerged that about two years before this incident the Appellants had introduced a supervision rota system, whereby the school was divided into four areas, each area to be supervised by a teacher during lunch hour.  This arose because there had been serious incidents in 1996 in which there had been fights in the school which had resulted in some twenty pupils being expelled.  After the rota was introduced, it appeared to work efficiently, and the Respondent’s evidence was that there was reasonably good supervision, but there were still fights in the school.

Both parties accept that the duty of care owed by a school is correctly set out in Lennon v. McCarthy & Anor, an unreported judgment of the Supreme Court of 13th July 1966, in which O’Dalaigh CJ said:-

“The duty of a school master is to take such care of his pupils as a careful father would of his children (per Lord Esher MR in Williams v. Eady [1893] 10 TLR 41).  But when normally healthy children are in the playground it is not necessary that they should be under constant supervision:  Rassthrane v. Ottley [1937] 3 All ER 902.”

Counsel for the Appellants also relied on the decision of Laffoy J in Flesk v. King (unreported 29th October 1996), in which she said that:-

“The Irish authorities established that the law does not require children in the school playground to be under constant supervision and watched at every instance.”

Quite clearly, school authorities are not insurers of the pupils under their care.  However, they do owe a duty to those pupils to take reasonable care to ensure that the pupils do not suffer injury.  To do this, some degree of supervision is clearly required.  The extent of such supervision will depend on a number of factors, for example, the age of the pupils involved, the location of the places where the pupils congregate, the number of pupils which may be present at any one time, and the general propensity of pupils at that particular school to act dangerously.  

The evidence shows that in the Appellants’ school there had been serious disciplinary problems, following which the Appellants considered it necessary to ensure that a teacher was present in certain specific areas, including the area where this incident took place, during lunch hour.  It must be made clear that the question is not what the Appellants considered necessary, but what is objectively necessary to comply with the Appellants duty of care.  However, the undisputed evidence of this case is that there had been problems which had resulted in twenty pupils being expelled, that following the introduction of the rota system the supervision was reasonable, and that for some unexplained reason the rota system did not operate on the day in question, and there was no supervision.  It is also the undisputed evidence of the Respondent that, had a teacher been present, the horseplay which resulted in his injury, would not have been allowed to take place.

The learned trial Judge expressed his view as follows:-

“In the absence of any explanation and in the presence of this schedule I have to take the view that the school decided …. The school is of the opinion that there should be supervision, that there was not supervision, that had there been supervision this incident would not have taken place.  In those circumstances, and again I say in the absence of … this would have been a circumstance in which the school could have explained and possibly explained to my satisfaction, but in the absence of such explanation I have to find for the plaintiff.”

While the learned trial Judge can certainly be criticised for emphasising what the school had decided, the fact remains in my view that the undisputed evidence before him could only lead to one conclusion, namely that there had been a need for supervision, supervision had taken place on a consistent basis with considerable success, but that on this occasion, such supervision was not present and this unfortunate incident took place.  The learned trial Judge was perfectly entitled to reach the conclusion, which was supported by the Respondent’s own evidence, that the incident would not have taken place had there been proper supervision.  I am of the view that the particular circumstances of this case, and the history of indiscipline in the school, imposed a duty of care on the Appellants to provide supervision at lunch time in accordance with its rota system, and that the failure to do so constituted negligence on the part of the Appellants.

I am also of the view that there is no evidence of contributory negligence on the part of the Respondent.  The learned trial Judge must decide the case on the evidence before him, and not  on concessions possibly made by the Respondent’s Counsel in opening the case.

Accordingly, I would dismiss this appeal and confirm the decision of the learned trial Judge.

THE SUPREME COURT
Appeal No. 410/2003 
McGuinness J.
Fennelly J.
McCracken J.

BETWEEN
KENNETH MURPHY (FORMERLY A MINOR NOW OF FULL AGE)
Plaintiff/Respondent
and
COUNTY WEXFORD VEC
Defendant/Appellant

JUDGMENT delivered on the 29th day of July, 2004 by FENNELLY J.
	This is an appeal from the judgment and order of de Valera J awarding €50,000 to the plaintiff for an eye injury sustained at school.  The appeal is confined to the liability issue.
	At the outset of the hearing counsel for the Appellant said that the trial had been unsatisfactory, but conceded that this was the responsibility of the Appellant.  It appears that counsel applied for a direction and stood on the application, when it was refused, i.e., did not call any witnesses.  In fact, it appears that any witnesses had been allowed to leave.  In effect, the case was heard on the Plaintiff’s evidence.
	The plaintiff, who was sixteen at the time, was in fifth year at the VEC School at Enniscorthy.  The plaintiff and his class were in the recourse area, an area for students to congregate before teacher arrived for the afternoon classes.  This was at lunch time, a period from 12:50 to 13:40, on 7th May 1998.  This area was reserved for fifth and sixth class students.  There were about 50 students in the area.  One of the plaintiff’s companions arrived with a packet of chocolate bars which he offered to everyone.  The packet burst; there was a suggestion that the bars were out of date and that the other students did not want them.  Whatever the reason, bars started to be thrown about.  About nine people were throwing bars.  The plaintiff’s description was:

“Well, basically, it escalated there was bars being thrown around the resource area. They were hitting off the lockers and some were hitting the windows.  One actually hit me before the accident actually happened.  It basically got out of hand.”

	Probably correctly, the learned trial judge thought the “ten-minute” description a bit exaggerated.
	The plaintiff was struck in the eye by one of the bars and sustained the quite serious injuries which warranted the award of €50,000.  He said that he was sitting at the window beside one of his friends waiting for the teacher.  He said: “A bar came from the left hand and struck me in the eye.”
	The liability of the Appellant depends on the issue of supervision.  The plaintiff said, in evidence, that there was normally supervision, but that there was none on the day.  The Appellant had made discovery.  The discovered documents were admitted and showed that there were four teachers who were supposed to supervise four different areas at lunch break.  One of these was the resource area.  The uncontradicted evidence was that there was no one supervising the resource area on the day in question.
	There was some evidence to suggest that, at an earlier stage, there had been a history of quite severe fighting in the school, which led to the introduction of the rosters.  The plaintiff said that there was then a full regime of supervision. “Everyone knew that if someone did something wrong there would be a teacher down on their back in minutes or seconds.”
	The totality of the evidence for the plaintiff was that of the plaintiff and of one of his sixteen-year old companions, one K Keane who merely confirmed that he saw no teacher in the area at the relevant time and that the build-up of the horse play lasted only a few minutes. 
	The plaintiff called no other evidence, and, in particular, no expert evidence. However, it is clear that the principal, if not the sole, plank of the plaintiff’s claim on supervision was that there was a roster of teachers who were supposed to supervise the various areas of the school, including the senior resource area, at lunch break.  This case was based on admitted documents produced through discovery.  At any rate, there was no objection to the plaintiff’s use of these documents.  Moreover, it was not disputed, through cross-examination, either that, in accordance with the roster, a teacher was assigned to supervise the area or that there was no teacher in the senior resource area at the relevant time.
	In these circumstances, counsel for the Appellant applied for a direction and, at the same time, made it quite clear that, in the light of the evidence of the plaintiff, he would not go into evidence.  Having cited to a number of the leading relevant authorities on the standard of care expected of school management, to which I will refer later, he submitted that the defendant (i.e. the Appellant) had no case to answer.  It is clear, therefore, that the Appellant invited the learned trial judge to decide the case on the evidence before him, but by reference to the authorities cited to him.
	The learned trial judge commenced by saying: “we all have experience of this sort of thing.”  He continued:

“In this matter what concerns me, what I take note of, is that the school authorities themselves obviously had come to the conclusion, because of the schedule that has been discovered, that it was necessary to have lunchtime supervision for this area and they scheduled a teacher to look after that supervision.

The incident that occurred, and I have to say that things have changed since my time, if there was a packet of chocolate biscuits brought into my school the fight would have been to get them not to throw them away, but if there had been a teacher supervising, if there had been a supervisor, I have no doubt that they would have at least taken steps to control the situation.  

I accept that 10 minutes is probably an exaggeration but it is probably an exaggeration of the length of time this was taking place, but is a perfectly understandable, perfectly normal sort of situation, other than my comment about fighting to get them rather than to give them away.  It is a perfectly understandable situation which could be controlled by a teacher and probably would have been controlled by a teacher.  I am told that the school took the view that there should be supervision by a teacher.

Now, in the absence of any explanation it may well be that the school could explain the situation and could explain it to my satisfaction, but there is nobody here from the school and I wasn’t asked for an adjournment.  Had I been asked to adjourn this matter because teachers were not in a position to attend in the circumstances I would have given it sympathetic consideration, subject to anything Mr Doyle might have said.

In the absence of any explanation and in the presence of this schedule I have to take the view that the school decided - the school is of the opinion that there should be supervision, that there was not supervision, that had there been supervision this incident would not have taken place.  In those circumstances, and again I say in the absence of - this would have been a circumstance in which the school could have explained and possibly explained to my satisfaction, but in the absence of such explanation I have to find in favour of the plaintiff”.   

	That is the entirety of the learned trial judge’s ruling on the legal issues which had been addressed to him.  He did not refer in any way to the legal submissions which counsel for the Appellant had addressed to him.  Nor did he identify the nature of the duty of or the standard of care.  It is appropriate to refer then to those cases.
	Firstly, counsel had referred to the ex tempore judgment of Laffoy J in the case of  Flesk v King (High Court, Unreported 29th October Act of 1996).  In that case, Laffoy J had held: “The Irish authorities establish that the law does not require children in the school playground to be under constant supervision and watched at every instant.”  Laffoy J had relied on a passage from McMahon & Binchy on The Irish Law of Torts.  Counsel referred to a similar passage, possibly from a later edition.  Secondly, counsel then referred to the unreported decision of this Court in Lennon v McCarthy (unreported 13th July 1966), which, he stated, supported the proposition that “when normally healthy children are in a playground it is not necessary that they should be under constant supervision.”  Thirdly, counsel relied, to similar effect on the English decision, cited by O’Dalaigh C.J. in Lennon v McCarthy, of Rawsthorne v Ottley and others [1937] All ER 902, where Hilbery J, presiding at the Manchester Assizes, held that: “…it is not the law and never has been the law that a schoolmaster should keep boys under supervision during every moment of their school lives.”
	The authorities so cited by counsel addressed the standard of care, which objectively, lies upon school authorities in respect of their duty to safeguard pupils under their care.  The standard is, as stated by O’Dalaigh C.J. “to take such care of his pupils as a careful as a careful father would of his children.”  While counsel for the defendant did not articulate the standard in those express terms, he cited a number of authorities all of which were based on that proposition. 
	Counsel for the plaintiff, in reply, quoted, without apparent objection, from the affidavit of discovery sworn on behalf of the Appellant and stated: “That is their own system, that is what they have sworn on affidavit is the regime of supervision to which they aspire and which they aspire in their in their school.”  Later, he said:

“The defendants’ own system, as they have admitted, is that they have somebody supervising every day the senior resource area; that is their system. They have singularly and very obviously failed to live up to that system….”

	In reply, counsel for the plaintiff referred again to the judgment of Hilbery J referred to already regarding the standard required by the law.
	In one sense, counsel for the Appellant took somewhat of a risk in not going into evidence.  That aspect of the case, as counsel conceded, was something for which responsibility lies entirely on the Appellant, which cannot now complain of its failure to call witnesses who could have been made available.  However, the Appellant was entitled, in my view, to expect that the learned trial judge would give a ruling based on the authorities cited to him and on the applicable legal principles.  The learned trial judge chose, instead, to decide the case exclusively, as he was invited by counsel for the plaintiff, on the basis that, since, the school had adopted a roster for supervision, adherence to that standard had to be taken as the appropriate standard of care for the purpose of deciding the case.  In my view, that was a mistaken approach.  It substituted a new subjective approach test for that ordained by the law.  The implication is that, if a schoolmaster takes an excessively cautious view, and makes provision for total and absolute supervision of pupils during every moment of the school day, the school will be liable for any departure from that standard.  I do not think the school should, in law, be liable for departure from a standard not required by the law.  Yet, that seems to be the consequence of the decision of the learned trial judge in this case. 
	Because of his reliance on the school’s own roster, the learned trial judge failed entirely to address the appropriate legal standard of care.  He not only made no reference to the cases cited to him but he failed to identify any objective standard of care.
	Counsel for the Appellant argued at the hearing of the appeal that the learned trial judge took a leap by applying the roster and that the result was that he applied a standard which was contrary to the authorities and which required constant supervision.  I agree with this submission.
	For this reason, I would allow the appeal, but in circumstances where the learned trial judge did not rule on the matter in accordance with the submissions, there should be a retrial.