The Gazette 1984

GAZETTE

SEPTEMBER 1984

The school authorities ought to have made the wall safe or put up railings or netting in front of it, or supervised the children properly in the playground. The Court of Appeal reversed. The Court described the wall as being "of the commonest type", 84 and considered that, because it never occurred to any of the parents before the plaintiffs accident that the wall was dangerous, it would be wrong to hold the school authorities liable 85 . The earlier accidents, said Lord Denning M.R., were "just the ordinary sort of thing which happens in any playground. They do not show that the wall was dangerous". 86 The Court of Appeal's decision has received some forcibly expressed support 87 , but it can be argued that it was unduly lenient. Who could agree with Salmon L.J.'s description of the accident as "the sort of chance which might be described as one in a million" 88 ? Perhaps if the children had been consulted as to their view of the wall's safety, this would have been more helpful than asking their parents. Conclusion This review of the cases in this country and abroad indicates that "school negligence" is one aspect of negligence law which has remained largely unaffected by the general movement, overt and covert, towards strict liability. It seems that this subject, already under public scrutiny and discussion, may become increasingly controversial as time progresses.* • * This article is written in a personal capacity. 56. Cf. pp. 4-5 of FitzGerald C.J.'s judgment. Liability was also imposed on the teacher in charge, but the basis of liability was not spelt out. 57. [1969] 3 All E.R. 746 (H.L.), reversing 67 L.G.R. 53 (C.A., 1968). 58. [1969] 3 All E.R. at 750. 59. Id., at 752. Lord Reid concurred with Lord Pearson. 60. Id., at 748. 61. Id. 62. [1955] A.C. 549 (H.L. (Eng.)). 63. [1970] 1 All E.R. 535 (C.A., 1969), reversing [1969] 2 All E.R. 807 (Hinchcliffe J.). See also Barnes -v- Hampshire Co. Co.. [1969] 3 All E.R. 746 (H.L.), reversing 67 L.G.R. 53 (C.A., 1968), discussed supra. 64. [1969] 2 All E.R., at 810-811. 65. [1970] 1 All E.R., at 538-539. 66. Cf. id., at 537. See the quotation set out in fn. 86, infra. 67. 17 A.L.R. 408 (High Ct. of Australia, 1977). 68. Cf. H. Luntz, D. Hambly & R. Hayes, Torts: Cases and 70. Id., at 706. See also Edmonston -v- Bd. of Trustees for Moose Jaw School District No. I. [1920] 3 W.W.R. 979 (Sask. C.A., 1920). Cf. Boryszko -v- Bd. of Education of City of Toronto and Bennett-Pratt Ltd.. 33 D.L.R. (2d) 257 (Ont. High Ct., Spence J., 1962). 71. Williams -v- Eady. 10 T.L.R. 41 (C.A., 1893). 72. Smith -v- Martin. [1911] 2 K.B. 775. 73. Cf. B. McMahon & W. Binchy, Irish Law of Torts 187, 245 (1981). See also P. North, Occupiers' Liability, 68-70 (1971). 74. Cf. McKeon -v- Flynn. 69 I.L.T.R. 61 (Circuit Ct., Judge Sheedy, 1934), Fryer -v- Saiford Corporation. [1937] 1 All E.R. 617 (C.A.) (especially at 622, per Scott L.J.). See also Morris -v- Carnarvon Co. Co., [1910] 1 K.B. 159 (K.B. Div., 1909), afTd [1910] 1 K.B. 840 (C. A.). In the King's Bench Division, especially per Phillimore J., at 167, there was strong emphasis on the fact that the defendants had "invited" the plaintiff to be on the school premises. The Court of Appeal applied a broader general concept of negligence, with less Footnotes 55. Unreported, Supreme Court, 29 May 1973 (61/64-1971). Commentary, 431 (1980). 69. 82 D.L.R. (3d) 701 (Sask. Q.B.. Hughes J., 1977).

invitee": Cropp -v- Potashville School Unit No. 25. 81 D.L.R. (3d) 115, at 118 (Sask. Q.B., Noble J., 1977) (reversing previous authorities). 75. Cf. Bohane -v- Driscoli. [1929] I.R. 428 (Sup. Ct.), Courtney -v- Masterson. [1949] Ir. Jur. Rep. 6 (High Ct., Black J.), in Boryszko -v- Bd. of Education of City of Toronto and Bennett-Pratt Ltd.. 33 D.L.R. (2d) 257 (Ont. High Ct., Spence J., 1962) where a child returned from home to play in the school playground after having had his evening meal, he was held to be a licensee: cf. id., at 262-263. 76. See, e.g. Rich -v- LC.C.. [1953] 2 AH E.R. 376 (C.A.). 77. Supra, fn. 3. 78. Unreported, Supreme Court, 13 July 1966 (5-1965). 79. P.3 of O Dálaigh C.J.'s judgment. See also Portelance -v- Bd. of Trustees of Roman Catholic Separate School for School Section No. 5 in Township of Grantham. 32 DLR. (2d) 337 (Ont. C. C.A., 1962) a Canadian decision very similar in its facts and legal holding to Lennon -v- McCarthy. 80. [1970] 1 All E.R. 535 (C.A., 1969), reversing [1969] 2 All E.R. 807 (Q.B. Div., Hinchley J.). 81. [1969] 2 All E.R., at 810 (per Hinchcliffe J.). 84. [1970] 1 All E.R. 535, at 536 (C.A., per Lord Denning M.R., 1969). 85. Cf. id., at 537 (per Lord Denning M.R.), at 538 (per Salmon L.J.)and at 539 (per Cross L.J.). 86. Id., at 537. 87. Cf. T. Weir, A Casebook on Torts. 99 (4th ed., 1979): 82. Id. 83. Id.

"Things have come to a pretty pass when it can solemnly be argued that a local authority should put a fence round a wall . . . ."

88. [1970] 1 All E.R., at 537.

Comme nt (continued from page 183) describe themselves, either within or outside the profession, as specialists in those areas. If such descrip- tions are to be permitted should mere attendance at courses be a sufficient entitlement for the description of specialist or should there be some form of certification? If there is to be certification does this mean that only those who are certified in a particular area of law should be entitled to practice in it. It will readily be seen that in a small legal community such as ours any enthusiasm for the introduction of Mandatory CLE on a profession-wide basis should be tempered with discretion. •

Abolition of Land Commission (continued from page 181)

some reduction in the inroads of bureaucracy. One fears, at the same time, that the bureaucracy will remain, merely administered by a different branch of the Department of Lands. The profession may also welcome the abolition of the system of paying professional fees in Land Bonds, although high interest rates have at least lessened the impact of this practice. The profession would, however, be very much the loser if the Land Commission Records Branch were to be closed or its archive material to be made unavailable. Uncountable title problems, wholly unrelated to current Land Commission activities, have been solved through the Land Commission's archives and the assistance of its ever helpful and patient staff. Let us hope that at least this much can remain. • !187

emphasis on. the "occupation" element in determining liability. In Canada it has been held that the duty of care owed in the school to a pupil is "higher than that ordinarily owing by an invitor to an