The Gazette 1984

GAZETTE

JULY/AUGIJST 1984

up lorry delivered coke in a school playground while the children were at play. The children crowded on the lorry when the driver had completed the task of unloading. The effect was to make the tipping part suddenly tip up. The children then quickly got on the lorry, so that the tipping part fell back in place, crushing the leg of the plaintiff, a thirteen-year-old boy. The evidence disclosed that on the day of the accident the headmaster had gone into the playground with the boys, that he had see>n them start their games, and "having other duties to attend to," 41 had gone back into the school building. He knew that it was the practice for coke to be delivered to the playground but did not know that it was being delivered that day since, it seems, he was not particularly concerned as to when it might be delivered. Hilbery J. held that no action lay against the school. 42 Having stressed 43 that a schoolmaster is not required to keep children under supervision all the time, he said: "Having regard to the fact that the schoolmaster did not know that the lorry was there, I find that there is no negligence. It is said that he knew it might have come. I still do not think that he should have stayed [in the playgorund] lest such a possibility should have become an event. Should he have stopped its coming during playtime? I do not think that that is lack of supervision, and it would necessitate exra supervision." 44 This argument is unconvincing. The evidence makes it plain that the headmaster, although aware that the coke delivery lorry would visit the school yard, did nothing either to prevent it from delivering during periods when the children might be playing or to ensure that, if it came at such a time, adequate supervision of the children would be provided. To suggest that the headmaster was legitimately taken by surprise in such circumstances is implausible. Hilbery J. also rejected the argument that the vehicle was an allurement or trap: "A lorry as such cannot be said to be an allurement to children to-day. As to a tipping lorry, it was not the tipping gear that brought about the accident. No permission was given to the plaintiff to interfere, or to other pupils to interfere. No one in authority anticipatd that the pupils would interfcic or were interfering. In my view, this disposes of the case against the headmaster." 45 This passage is difficult to understand. Contrary to what Hilbery J. says, it was the tipping gear that brought about the accident, in the sense that it was part of the attraction to the boys, and was involved in the incident which resulted in injury to the plaintiff. Moreover, the absence of express permission or specific foresight was scarcely a strong factor against the plaintiffs case — especially since the headmaster deprived himself or his subordinates the opportunity to predict (and thus prevent) the incident by leaving the boys play unsuper- vised in the yard at a time when a delivery was possible. In Jackson -v- L.C.C. 46 , a contractor, who was to carry out certain repairs at a private elementary school, left "a quantity of rough stuff' 47 composed of sand and lime in a barrow in a corner of the school playground. The headmaster, considering this to be dangerous, instructed the school's caretaker to have it removed, but this was not done. Two days after the barrel had been left in the

"In circumstances such as those in this case careful supervision is essential, and the persons having charge of the school are bound to see that there is supervision of the playground during play intervals. It was the duty of the principal teacher to see that the playground was clear and not a source of danger to boys playing there, who could not be expected to keep their eyes fixed." 34 The boy was held not to have been guilty of contributory negligence on the basis that ' [bjoys naturally run in a playground" 35 and that the accident took place, during a period of recreation, in a place specially set apart for play which the boy "was entitled to assume . . . was reasonably safe for this purpose." 36 In Healy -v- Doddf an eleven-year-old pupil was injured when he fell while using handcuffs in a game known as '"still" — where "police" arrested "poteen makers". The use of handcuffs had been forbidden two years earlier and a pair of handcuffs had been confiscated. In order to keep up the deception of the game imaginary handcuffs were put on by the boys after the real handcuffs were taken by the master. 38 Two days before the accident the handcuffs made their way back to the school —being brought there by the son of the principal teacher, unknown to him. O'Byrne J. in the High Court dismissed the action. The teacher had been supervising play at the time of the accident and there was "nothing to arouse his suspicion" 34 that the real handcuffs had returned. The English decision of Rawsthorne-v- Ottley 40 in 1937 suggests a degree of leniency towards school masters and managers which would be unlikely to prevail today. A tip- " Authorised Wang Dealer. EMPLOYMENT OPPORTUNITY THE COMPANY BCL are agents for Wang Word Processors and Legal Accounting systems, to the Legal Profession in Ireland. BCL are a growing company with over 25 systems already installed. THE PERSON The person we require would be a Qualified Solicitor with a Marketing/Sales ability or background. Knowledge of computer systems, though not essential, would be an advantage. THE REWARDS An attractive remuneration package linked with performance is offered, along with a car allowance. Contact: Mr. Rick Deegan, Sales Director. Tel. (01 604545/604578 or Reply to: REF: SOL APP Business Computing and Law Limited, 55 Lansdowne Road, Ballsbridge, Dublin 4.

156