Wayne Maher (a minor suing by his mother and next friend, Teresa Maher) (plaintiff) v Board of Management of Presentation Junior School Mullingar (defendant)
Tort - Negligence - Child injured in classroom by another pupil - Liability of school - Whether level of supervision adequate - Standard of care
The High Court (before Mr Justice Peart): judgment delivered October 22nd, 2004.
The standard of care owed by a school to a pupil is that of a prudent parent. Simply because an injury takes place in a school, this does not automatically mean that the school management or any individual teacher has been negligent. For a breach of duty to occur there is a requirement of foreseeability. Where a teacher is momentarily distracted from supervision of a class in order to have a short conversation with another teacher, and an injury is caused to a pupil during that short period, it is not negligent of the teacher to have been so distracted, in circumstances where there was no particular or unusual difficulty known concerning the past behaviour of the children in the class.
The High Court so held in dismissing the plaintiff's claim for damages for personal injuries arising from an incident in a classroom.
Aidan McGovern SC and Gabriel Gavigan BL for the plaintiff; Finbarr Fox SC and Adrianne Fields BL for the defendant.
Mr Justice Peart commenced his judgment by outlining the background to the case. The plaintiff, aged 11 years of age, almost five years previously had sustained a nasty injury to his right eye in an incident in the classroom of the defendant school when another boy, who was sitting opposite the plaintiff, used a rubber-band as a catapult, while the teacher's attention was not on him, and propelled his pencil in the direction of the plaintiff's face hitting him in the right eye. A few days later on examination by an eye specialist, it was discovered that the plaintiff suffered a laceration to the cornea and there was evidence of a prolapse into the wound resulting in an irregular pupil.
Mr Justice Peart said that it was necessary to deal with the question of whether the defendant school has been negligent at all, as liability was in issue. For that purpose a summary form of the relevant evidence was set out. Mr Justice Peart said that having satisfied himself that the plaintiff understood what it means to take an oath and give sworn evidence. He also said that the plaintiff gave his evidence in a very sincere manner and, especially given that this incident occurred five years ago, that the plaintiff gave his evidence truthfully as he remembers matters now.
Mr Justice Peart summarised the evidence as follows. The plaintiff entered first class, a class of between 25 and 30 children, in the school in September 1999, in the charge of a young teacher, Ms Shaw, for whom the plaintiff's class was her third such class in the school. In the classroom there were rows of tables, as opposed to desks, at which about five pupils sat on each side facing each other. The plaintiff's evidence was that at some time after the short morning break had ended and the class had resumed on this particular day, but before the lunch break, a person whom he believed to be another teacher, Ms Brennan, (but who the defendants say in fact was a Special Needs teacher, Ms Fitzsimons) came into the classroom. The plaintiff said that while Ms Shaw was speaking to this person near the door, he was looking away to his right. He heard the boy opposite him say "Look!", whereupon he turned back and was immediately hit in his right eye by a pencil which had been propelled towards him by this boy with the aid of a rubber-band which this other boy had in his possession. The plaintiff's evidence was that he did not shout or make any noise which drew Ms Shaws's attention to what had happened to him and that he was not crying after it happened. Another classmate informed Ms.Shaw what had happened. The plaintiff stated that his eye was very painful at the time, and that it was watery and his vision was blurred. Mr Justice Peart said that nothing much turns on what exactly happened after the incident, as there was no part of the subsequent events which has been alleged to have contributed in any way to a worsening or improvement of the injury. It was simply what happened up to that point in time which was relevant as far as the issue of liability was concerned.
In her evidence Ms Shaw recalled the day in question, and that during the morning, as was normal, Ms Fitzsimons had come into the classroom in order to take out a number of pupils for some special tuition. It took about three or four minutes to do this. After Ms Fitzsimons had departed a boy brought to her attention the fact that the plaintiff had been hurt. She went down to Wayne, and decided to bring him and the other boy who had fired the pencil, to the Principal, Sr Angela. Ms Shaw stated that this was the first and only occasion on which she had brought this particular boy to Sr Angela to be reprimanded. Sr Angela said that it was normal procedure for her to contact the parents of any child who was injured, if she deemed it to be necessary, but this injury did not seem to her to be serious. Sr Angela also stated that it was against the rules of the school and the classroom for children to bring rubber-bands into school.
Mr Justice Peart then detailed evidence adduced by the plaintiff given by Dr O'Reilly, an expert in matters related to school management. She opined that the standard of care in the classroom would vary depending on different circumstances, and that there can be some variation between what would be regarded as ideal, and what actually happens in practice in different situations and at different times, and that the younger the child the greater the onus to be vigilant, and that it was essential that there be constant and appropriate supervision of young children. She expressed the view that the presence of a second teacher in the classroom would make it more difficult for the class teacher to be in total control. On cross-examination by counsel for the defendant Dr O'Reilly confirmed that having one teacher in charge of 25-30 children in a class was normal, and that the seating arrangements in this classroom were satisfactory. She said that it can be a worry that supervision can be adversely affected by another teacher being in the room, and that if teachers need to talk to each other, it can normally take place outside the classroom. Dr O'Reilly accepted that it was not an unusual practice for the remedial teacher to call to the classroom in order to collect such pupils. She further stated that a teacher could only have stopped a pupil from doing what he did with the pencil if the teacher had been watching that pupil all of the time.
Mr Justice Peart said that he was satisfied that this was a normal class of six year olds and that there was no evidence that there was any particular, unusual or special difficulty as far as the known behaviour of these children was concerned, and further, that it was entirely appropriate that one teacher should be in charge of this class, and that what happened on the morning in question happened "out of the blue". Even though it was a school rule that rubber-bands are not to be brought into school, it was not a reasonable imposition on teachers to search thoroughly the pupils of a class to ensure that an object such as a rubber-band was not secreted either in their clothing or in their schoolbags. Mr Justice Peart was satisfied that the incident was just something which happened without warning and suddenly while the teacher's attention was elsewhere.
Mr Justice Peart said that the question remained whether what happened could be classified as negligence on the part of the school. It was pleaded in the statement of claim that the school failed to provide the plaintiff with the means by which to avoid unsupervised contract with the other pupil, that the school failed to provide the plaintiff with adequate protection from the pupil or from assault on the school premises, failed to have any or any adequate precautions for the plaintiff's safety while in the classroom, and exposed the plaintiff to risk of damage or injury which they knew or ought to have known. There was also a plea that there was inadequate training for teachers in school in relation to the supervision of children in the classroom. Mr Justice Peart stated that in his view the evidence did not support those pleas and that his overall impression was that this classroom was conducted in a perfectly normal way, and a way which did not fall short of reasonable standards for such classrooms.
Counsel for the plaintiff highlighted the fact that Ms Shaw had not seen the rubber-band in question before this incident took place, even though it was clear that it must have been there, and that therefore her level of supervision was not adequate in the circumstances of this case, and that had she seen the rubber-band it would have been confiscated and the injury would not have occurred. Counsel for the defendant submitted that the standard of care to be imposed on a school teacher is the standard of the prudent parent, and that it is a duty to take reasonable care. He submitted that the class was well behaved and that the presence of Ms Fitsimons in the classroom for the time she was there was not relevant. He submitted that the evidence showed that there was no suggestion of misbehaviour in the classroom, and that what happened was simply a sudden act which could not have been anticipated.
Counsel for the plaintiff referred the court to a judgment of Mr Justice McCracken in the Supreme Court in Murphy v. County Wexford VEC, unreported, July 29th , 2004, at page 5:
"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."
Mr Justice Peart agreed with this but said that in the instant case, the dicta of Mr Justice Mc Cracken were called in aid of a submission for the plaintiff that the vigilance required in respect of a class of six year olds is heightened given their young age. Mr Justice Peart stated that one must look at the actual situation in this classroom on this morning. Ms Shaw had been teaching these children for a couple of months by the time this incident occurred, and would have got to know those in her care. She said in her evidence that the boy who hurt the plaintiff was a normal child. One had to ask what Ms Shaw, or the school itself, could have done to ensure to any absolute extent that this incident would not occur. Mr Justice Peart stated that in order to provide any additional insurance against such an occurrence, it would be necessary to search each child's person and schoolbag upon arrival, and that that would be an unreasonable burden and one not required in the discharge of the duty of care owed by the school to its pupils. Mr Justice Peart said that there is a duty to be vigilant to an extent that is within the bounds of reasonableness. That involves a measure of supervision appropriate to the needs of any particular situation, and some factors to be taken into account in the passage appear in the judgment of Mr Justice Mc Cracken. For a breach of that duty of care to occur, there must exist in addition to the relationship of proximity (which clearly exists in the case of a school and pupil) the requirement of foreseeability. In the present case that meant that before the defendant school could be liable, the court would have to be satisfied that it was reasonable that Ms Shaw should be expected to anticipate that the moment she turned her back (not literally) on the class in order to have a very short conversation with Ms Fitzsimons at the door of the classroom, it was probable or likely that some behaviour would occur which would cause injury to one or more of the pupils in her charge. Mr Justice Peart stated that the evidence did not support the submission that she ought to have foreseen that this might happen. The duty of care on a school extends to taking appropriate account of the known circumstances when deciding on the appropriate level of supervision in the school, perhaps particularly during break or recreation periods when pupils are outside the more controlled environment of the classroom.
Mr Justice Peart stated that the standard of care required in school is that of a prudent parent. The school is said to be in loco parentis, in other words, the school is expected to be no more and no less vigilant of those in its care than a prudent parent would be in his or her own home. In any normal child there is always a certain propensity for horseplay and high spirits. Indeed, if it were not so, there might be some cause for concern. It is inevitable that in the ordinary rough and tumble that is part and parcel of the daily life of a six-year-old child, cuts and bruises will occur. Mr Justice Peart stated that he was not equating what happened to the plaintiff as coming within the category of unblameworthy conduct on the part of his assailant, but was asking, albeit theoretically, if it could be reasonably said that if a group of children is playing at home in the garden and a neighbour's child falls while being chased by the others in a game of "tig" while the supervising parent is in the kitchen boiling a kettle, that parent has been negligent in a way that renders him/her liable in damages for the injury?
Mr Justice Peart stated that in his view, such a situation could not be said to amount to negligence. Mr Justice Peart stated that it is perfectly understandable that a parent of an injured child should wish to seek redress for the injury on his behalf. But it must be remembered that simply because an injury takes place in a school does not mean that the school management or any individual teacher has been negligent. Negligence must be established, and in this case Mr Justice Peart could find no such evidence.
Mr Justice Peart concluded by saying that he had to find that the case of negligence against the defendant school has not been proven, and, in those circumstances, he dismissed the plaintiff's claim.
Solicitors: David Walsh & Co. (Mullingar) for the plaintiff; Arthur O'Hagan & Co. (Dublin) for the defendant.
P.J. Breen, barrister
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