The Gazette 1990

j A nua R y / february

1990

GAZETTE

ation recommending that schools take out accident insurance for pupils playing rugby, but at the time of the plaintiff's accident the school had not decided on what sort of insurance was required and how it was to be obtained. The plaintiff brought an action against the school's trustees alleging that the school had been negligent in failing (i) to take reasonable care for the plaintiff's safety on the rugby field, in that the school had failed to coach or instruct the plaintiff in proper tackling techniques, (ii) to insure the plaintiff against acci- dental injury and (iii) to advise the plaintiff's father of the risk of serious injury in rugby, of the need for personal accident insurance for the plaintiff and of the fact that the school had not arranged such insur- ance. The plaintiff claimed dam- ages for pain, suffering and loss of amenity, loss of earnings and the cost of future assistance. The Queen's Bench Division dismissed the plaintiff's claims. The court held that on the facts the school was not negligent in its coaching or teaching of rugby and it was not liable for the plaintiff's injuries since they were the result of an accident rather than negli- gence on anyone's part. The Court held that there was no general duty arising simply from the relationship between the school and its pupils requiring the school to insure its pupils against accidental injury or to protect the pupil's economic welfare by insuring them because such a duty would be in excess of the school's obligation to educate and care for pupils and would be wider than the duty imposed in a school in its position in loco parentis. Similarly, a school was under no duty to advise a parent of the dangers of rugby football or of the need for personal accident insurance, just as a parent was under no duty to insure if he was advised to do so. Furthermore, the plaintiff's school had never assumed legal responsibility for advising on the need for insurance or for insuring its pupils, since it did not hold itself out as having the expertise to advise parents on insurance or to deal with insurance itself, and there was no evidence that the plaintiff's father had relied on the school for such advice.

drafting work had in fact been done in relation to the establishment of a statutory civil legal aid scheme but the Minister regretted that it had not been possible up to now to introduce a Legal Aid Bill. Legisla- tion was promised "as soon as possible". Mr. Flanagan TD asked the Minister to put a time scale on the placing of legislation before the House. He referred to the concept of a small claims court which would deal with cases more quickly and less expensively. Mr. Shatter TD stated that the record of how the Government had dealt with the civil legal aid scheme was utterly appalling. Mrs. Fennell TD referred to the fact that the lack of the legal aid service meant that couples often with dreadful emotional marriage problems had no means of escape or relief. Mr. O'Dea TD stated that the motion overlooked the fact that three was another legal aid system in operation - the criminal legal aid scheme - which cost the State £2.5 million in 1989 and would cost £2.75 million in 1990. Mr. D. Ahern TD stated that one of the major flaws of the scheme was the fact that no provision was made for the taking of test cases on various issues which came up from time to time. Mr. P. McCartan TD argued that legal aid as an institution and as a right was essential to the fight against poverty in this State. Mr. Rabbitte, TD, saw the civil legal aid scheme as a method of formulating an attack on poverty. Mr. Sherlock TD argued that every person should have the opportunity to assert his or her right. Mr. Power TD, Mr. Spring TD, and Mr. Kemmy TD also spoke. The Government's amendment which noted, inter alia, the increase in the grant-in-aid to the Civil Legal Aid Scheme, was carried. F A I R T R A D E C O MM I S S I O N : R E P O R T ON L E G A L S E R V I C E S The following comments made by Mr. D. O'Ma Hey, Minister for Industry & Commerce, at the Annual Dinner of the Limerick Bar Association, 9th March, 1990, will be of interest to members of the profession.

F R E E L E G A L A I D : D A I L MO T I ON Mr. Kavanagh TD moved a motion in the Dail on Private Members' Business on February 20, 1990 that Dáil Éireann should condemn the failure of the Government to provide adequate resources to enable the civil legal aid scheme to be properly developed and ex- panded. He called on the Govern- ment to enact the relevant legislation to place the civil legal aid scheme on a statutory basis, based on the principle that all those in need of civil legal aid but who cannot afford it would have access to it. Mr. Kavanagh referred in his speech to the Pringle Committee, and the JoseyAirey case. He stated that there never was a truly nát- ional legal aid service; the service had been strangled at birth. The public service recruitment embargo had a disastrous effect on the operation of the legal aid scheme, according to Mr. Kavanagh, which prevented the Free Legal Aid Board from maintaining even the limited level of service which the Board initially achieved. The Minister for Social Welfare, on behalf of the Minister for Justice, stated that the Govern- ment had made provision to increase the grant-in-aid to the Free Legal Aid Board by some 25 per cent - which should enable the Board to recruit 20 additional staff including seven solicitors and 13 administrative staff. The Minister stated that the main reason why cases before tribunals are excluded under the scheme was to discourage a growing trend towards "legalism" in tribunals which were originally and deliber- ately designed to be informal and "non-legal" for settling disputes. On the use of private practition- ers, the Minister stated that he was not totally opposed to the use of private practitioners and there were situations in which it may be possible to make use of private practitioners in the operation of the scheme. Cases involving adjourn- ments of legal aid proceedings and the more efficient use of money and staff resources in servicing the Legal Aid Board's 19 part-time law centres were instanced as examples where the private practitioner could contribute. A considerable amount of

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