Local Government - June 2009
Boys will be boys – Life on the School Playground
Lord Justice Waller, Vice President of the
Court of Appeal (Civil Division), gave the leading judgment in both
Orchard v Lee [2009] EWCA Civ 295 and Palmer v Cornwall County
Council [2009] EWCA Civ 456 and even though proceedings were never
commenced against the School in Orchard there are valuable
indications as to the Court’s current thinking on supervision.
Orchard v Lee
Facts
On 27 January
2004 the Claimant, who was employed as a lunchtime supervisor in a
school, was walking in the school courtyard when a 13 year old
schoolboy (“the Defendant”) collided with her causing her to
sustain personal injury. The Defendant had been playing tag
with another 13 year old boy and was in fact running backwards
taunting the other boy in the moments leading up to the
accident.
The accident occurred on a walkway which
formed part of a courtyard used by Year 9 pupils at the
school.
Whilst there were school rules prohibiting
running in internal corridors there was no such rule or prohibition
on running in the outside courtyard.
Following the accident the rules were changed
and the layout of the area was changed so as to discourage
running.
First Instance Decision
Despite his sympathy for the Claimant, His Honour Judge Iain Hughes
QC dismissed the Claimant’s claim. He held that this was a
simple accident caused by “horseplay between two 13 year old boys
in and around an outside courtyard … boys doing what boys
do.”
On Appeal
Again, whilst
the Appeal Judges had sympathy for the Claimant, they had little
hesitation in dismissing her Appeal. Lord Justice Waller
echoed the sentiments of the Trial Judge concluding:
“13 year old boys will be 13 year old boys who
will play tag. They will run backwards and they will taunt
each other. If that is what they are doing and they are not
breaking any rules they should not be held liable in
negligence. Parents and schools are there to control children
and it would be a retrograde step to visit liability on a 13 year
old for simply playing a game in an area where he was allowed
to.”
For a child to be considered negligent,
his/her conduct would need to fall below the standard objectively
expected for a child of that age. The Court of Appeal went so
far as to say that it would require careless conduct of a very high
degree.
Palmer v Cornwall County Council
Facts
On 12 July 2001, the Claimant, a 14 year old
pupil (Year 9) was hit in the eye by a rock thrown at a seagull by
another pupil. The accident occurred at lunch time in a
designated area for Years 9 and 10. There was also a
designated area for Years 7 and 8, each about the size of a
football pitch. It appears that the pupil had placed food on
the ground in a bid to tempt passing seagulls and then proceeded to
throw stones at them. During one such attempt, the rock
accidentally hit the Claimant in the eye.
At the time of the incident there was one
dinner lady on duty supervising the pupils outside.
The Claimant’s case was that there were in
excess of 300 pupils, probably over 400, whereas the school
suggested the number was closer to 150.
The dinner lady conceded that she focused her
attention on the Year 7 and 8 pupils and Years 9 and 10 received
“only the occasional glance”.
First Instance
Decision
Mr Recorder Chippindall dismissed the
Claimant’s claim against the local education authority finding that
the pupils “about 300” had been properly and appropriately
supervised.
On Appeal
The Court of
Appeal believed that little turned upon the precise number of
pupils, be it 300 or 400, since there was not even one supervisor
giving 100% attention to Years 9 and 10, offering them nothing more
than the occasional glance by way of supervision.
Lord Justice Waller refused to be drawn on the
precise ratio of pupils to staff that should be adhered to, stating
that each case must depend “on the circumstances and the assessment
of risks.”
It was however confirmed that the Trial
Judge’s decision was perverse and whilst “younger children need
closer supervision than older children … all need supervision.”
The Court of Appeal did add that it was
inappropriate to ask one dinner lady to supervise 150 Year 7 and 8
pupils even if they were receiving her undivided
attention.
“The purpose of appropriate supervision is to
deter children taking part in dangerous activities, as well as to
stop dangerous activities if they do occur, a Court should not be
too ready to accept that the dangerous activity would have happened
anyway.”
Comment
Whilst children
are allowed to be and act like children, schools must be forever
mindful of the proactive role they must play in safeguarding the
safety of children and staff.
Generally, we believe that there still remains
reluctance on the part of the courts to impose liability for
accidents in the playground providing that the school can evidence
that reasonable care had been taken.
In the case of Palmer, the key weakness was
that on the evidence of the dinner lady there was effectively no
supervision of Years 9 and 10 at all and the throwing of stones is
clearly something which was potentially dangerous.
By contrast, in Orchard, the Court of Appeal
attached significant weight to the fact that the pupils had not
been breaking any school rules at the time of the accident.
Schools must as ever ensure that their record
keeping is exemplary, that there are clear rules which are
documented, publicised, adhered to and enforced.
Whilst we do not believe that schools are
burdened with an unnecessary requirement to supervise / restrict
the actions of school children at every turn and with ever
increasing numbers of staff, activites and the associated risks
must be adequately risk assessed and appropriate action taken
(including sufficient supervision) in order to safeguard both
children and staff.
For further information about
Weightmans or to discuss any of the issues in this update please
contact Andy Griffiths at Weightmans on 0121 200 3493 or at
andy.griffiths@weightmans.com
Weightmans LLP