Maura Flynn (a minor) suing by her mother and next friend Mary Flynn (plaintiff/appellant) v Sean O'Reilly (defendant/ respondent).

Tort - Negligence - Duty of care - Level of duty - Rule of absolute liability.

Notice of Appeal - Generality of grounds.

The Supreme Court (Mr Justice O'Flaherty, Mr Justice Keane and Mr Justice Murphy); judgment delivered 11 January 1999.

TO lay down a rule which would have the effect of preventing children having due freedom to play and engage in sports in a field adjacent to a school where such field was not as smooth as it might be, would be too strict a rule. It would be to do what the law of negligence commands should not be done, which is to impose standards which are unreasonable having regard to all the circumstances. It would really be an attempt to introduce a rule of absolute liability which would be to go to far.

The Supreme Court so held in dismissing the plaintiff's appeal.

Henry Bourke SC, Conor Maguire SC and Bernard Madden BL for the appellant; Fergus McKenna O'Hagan SC and Eileen Lydon SC for the respondent.

MR JUSTICE O'FLAHERTY set out the facts of the case stating that this was an appeal, brought on behalf of the infant plaintiff, against the judgment and order of Mr Justice Smyth in the High Court.

The plaintiff, a pupil of St Colmcille's National School, Castlegar, County Galway, who was aged eleven at the time of her accident, was injured while participating in a running backwards race organised as part of a school sports day. The sports day was held in a field, measuring approximately 64 yards by 33 yards, and which was adjacent to the school. There was a rule that insofar as the field was used for hurling or camogie, it should only be used for ground hurling or camogie because there was a low wall and it was undesirable that the ball should go out of bounds. Counsel for the plaintiff laid some emphasis on this as being a probable cause for the field not being as smooth as it might be.

As the plaintiff was going backwards, she said that she felt that her foot got caught on some kind of hole or depression or something in the ground, and she fell. She fractured her wrist and while it did not knit as smoothly as would have been hoped, she did seem to have made a good recovery. Mr Justice O'Flaherty stated that he did not think it would be right to categorise the injury as serious or even significant but that the court was not concerned with the injury aspect of the case because the trial judge had concluded that there was no negligence on the part of the school teachers. He stated that the height of the plaintiff's case as mounted in the pleadings, at the trial and indeed on appeal, was that the field was somewhat rough and uneven, and more so towards the side over near the wall; and that it was unsuitable for a backwards running race. Taking the plaintiff's case at its height, Mr Justice O'Flaherty was unable to agree that there was any negligence. He said that there must be some form of risk attached to all forms of sport, even the simple games of a sports day, and that in a hard surfaced playground people would come to grief from time to time.

The judge went on to state that this very question had been addressed by this court in Lennon v McCarthy (Supreme Court, unreported, 13 July 1966), noted by McMahon and Binchy in A Case Book on the Irish Law of Torts, at page 182. The facts of that case were that the plaintiff was being chased by another pupil in a game of "tig" and was running by a fence where there were a number of hawthorn bushes. A branch projected out horizontally from one of the bushes and as they ran along one of the boys pushed the against bush and the plaintiff, in close pursuit, was struck in the eye by the rebounding branch. He sued the manager and principal of the school for negligence.

The then Chief Justice, Mr Justice O Dalaigh, laid down the standard of care, which was that the duty of the school master was to take such care of his pupil as a careful parent would do for his children and that when normal healthy children were in a playground it was not necessary that they should be under constant supervision. Mr Justice O Dalaigh considered that the court was being invited to say that a careful father would consider the field unsuitable or even dangerous for nine or ten year old boys to play in and that he should foresee that children would be likely to be injured there. The Chief Justice was unable to accept this view. Its effect would be to proscribe the playing of ordinary simple games in the ordinary surroundings of rural Ireland. What happened was an accident such as was inseparable from life and action and no circumstances existed which would warrant placing responsibility for it on the plaintiff's school teacher.

Mr Justice O'Flaherty held that the present case was much the same situation. and that it would be unreal to say that a parent would regard the field as dangerous, indeed the history of games which had been played and the sports that had been held there did not point to anyone having come to grief in any fashion in the past. He stated that the trial judge had made a number of findings of fact which were as follows; first, the race was not run in lanes; second, the plaintiff was not perhaps as far to the margins of the field as she claimed; third, the participants were carefully supervised; fourth, the plaintiff fell but was not seen to fall by the supervising teacher, who was running sideways with the participants; fifth, as a matter of fact and probability the plaintiff was not as far off the centre of the pitch as she thought and was not on, at or near the periphery of the field - had she been so the supervising teacher should and would have seen her fall; sixth, the plaintiff said she tripped over something, it was a hole covered with grass of about two inches deep and that immediately after she fell or before being taken into the school she noticed this. The trial judge held that it was rather improbable that she detected that; he found great difficulty in accepting that the plaintiff tripped or got her foot caught in a hole because the motion of running backwards involved a springing movement on the toes, and the heels must be raised throughout the running movement. Mr Justice O'Flaherty stated that the latter finding was probably the one most open to doubt but that nothing turned on it because even accepting that there was some indentation or unevenness and accepting that there was some risk attached to people running backwards, as opposed to running forwards, and that that was more hazardous, to lay down that that should be forbidden in a way that would prevent children having due freedom to play and engage in sports, would be too strict a rule. It would be to do what the law of negligence commands should not be done, which is to impose standards which are unreasonable having regard to all the circumstances. It would really be an attempt to introduce a rule of absolute liability which would be to go to far. Mr Justice O'Flaherty also observed that the notice of appeal was somewhat deficient although counsel for the plaintiff had fairly faced up to this. All that the court had been given were very general grounds of appeal and counsel for the plaintiff, without objection from counsel for the defendant, had developed certain aspects of the case which the court had been able to deal with. In future it would be important to try to be as explicit as possible in setting forth the grounds of appeal.

Mr Justice O'Flaherty dismissed the plaintiff's appeal. MR JUSTICE KEANE and MR JUSTICE MURPHY concurred with the judgment of Mr Justice O'Flaherty.

Solicitors: O'Dea & Co (Galway) for the appellant; William Glynn & Co (Galway) for the respondent.