Carmarthenshire County Council v Lewis

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Oaksey,Lord Goddard,Lord Reid,Lord Tucker,Lord Keith of Avonholm
Judgment Date17 February 1955
Judgment citation (vLex)[1955] UKHL J0217-2
Date17 February 1955
[1955] UKHL J0217-2

HOUSE OF LORDS

Lord Oaksey

Lord Goddard

Lord Reid

Lord Tucker

Lord Keith of Avonholm

Carmarthenshire County Council
and
Lewis
Lord Oaksey

My Lords,

1

This is an appeal from the Court of Appeal affirming a judgment of Mr. Justice Devlin in favour of the Plaintiff, who is the widow of a lorry driver who lost his life, when driving a lorry, in an attempt to avoid a little boy named David Morgan (hereinafter called “David”) aged about three and three-quarter years, in College Street, Ammanford. David was a pupil at the nursery school conducted by the Appellants who are the Local Education Authority responsible for the provision and maintenance of schools in the county of Carmarthen. This school included a nursery school, an infants' school and a junior school, the premises of which abut on College Street, Ammanford, and are delineated on the plan put in evidence, from which it appears that the building marked “School Ages 7-11” was the junior school and the building marked “Nursery School” included both the infants' school and the nursery school, the infants' school occupying the eastern part of the building marked “Ages 5-7” and the nursery school the western part marked “Ages 3-5”. The play-pen was used only by the nursery school and the yard to the south of the nursery school was used only by the infants' school. This yard had access through a gate leading into a lane which led to College Street, and the yard to the south of the junior school had a gate which led directly into College Street.

2

On the 19th April, 1951, at about 12.15 p.m. after the midday meal, the mistress in charge of the nursery school, Miss Morgan, was about to take David and a little girl, both of whom had been at the nursery school for a year, out for a walk as a treat which she gave daily to two of the children in the nursery school. She left David and the little girl, who had got their hats and coats ready to go out, in the class room in which two girls of about nine years old from the junior school were laying out mattresses, whilst she went to the lavatory. As she came back she met a child coming from the play-pen who had fallen down and cut himself. She washed and bandaged him and then was taking him to the head mistress of the school to see if he should be taken to the doctor, as she did not know whether the cut he had was serious, when she met David in the head mistress's office, and it appeared that he had been brought there from College Street, where the accident to the Plaintiff's husband had taken place. Miss Morgan had been away about ten minutes.

3

In these circumstances, Mr. Justice Devlin and the Court of Appeal have held that Miss Morgan was negligent in leaving David and that her negligence caused the accident to the Plaintiff's husband.

4

I should agree that, if Miss Morgan was negligent, her negligence was causally connected with the accident. If a child of under four years, who is in the charge of a schoolmistress, is negligently allowed by the schoolmistress to stray into a crowded street, I am of opinion that the negligence is causally connected with an accident caused by the child. But I do not think Miss Morgan's conduct was negligent.

5

The standard of care which the law demands is the standard which an ordinarily prudent man or woman would observe in all the circumstances of the case.

6

Mr. Justice Devlin appears, in my opinion, to have disregarded what Miss Morgan said as to her reasons for not returning immediately to the two children. He said:

“If the case had been that the child was hurt sufficiently badly to give rise to a degree of alarm that drove from Miss Morgan's mind the other calls upon her, or to put her into the position of having to choose between two duties, both of which she could not adequately perform, I should have felt gravely handicapped by lack of material.

But I think it emerged quite clearly from Miss Morgan's evidence that the defence was not that.”

7

But in my opinion that was exactly what the defence was. Miss Morgan said she bandaged the child who was hurt and took him to the head mistress to see if he should be taken to the doctor as she did not know whether the cut he had was very serious. The head mistress was called by the Defendants, but was asked no question by the Judge or the Plaintiff's Counsel on this matter. Doubtless Miss Morgan might have taken other steps: she might have told David that she would only be a few minutes, or have asked the mistress in the play-pen to keep an eye on him, but she knew David to be an obedient child who had been under her care for a year and she knew that he and the little girl were waiting, dressed up to go out with her for a treat. The learned Judge said that they were “dressed up with nowhere to go …” But they were going out with Miss Morgan, and I should have thought that that was exactly what would have made them wait for the mistress who had promised to take them out for a treat.

8

In such circumstances it appears to me perfectly natural that Miss Morgan would never have thought that the children would wander out of the school into the yard, much less go out through the gate into the lane. As she said, they were trained children who had been in the school for over a year. Mr. Justice Devlin appears to have formed a somewhat unfavourable opinion of Miss Morgan because of her evidence about the gates out of the yards, which was as follows:—

“Q. Can children aged 5 to 7 operate the latch of the gate into the lane? A. Yes.

Q. There is a latch to the gate-into the lane, is there? A. Yes.

Q. Is there a latch to the gate into the highway, or is it the fact you can open it just by pulling it? A. By just pulling it.

Q. And it is a fact, is it, that you can get from the infants' yard to the main school yard? A. Yes, my Lord.

Q. Are those gates ever kept locked during the play hours when the 5 to 7's are out? A. Yes.

Q. They are? A. Yes, they are locked.

Q. Always? A. No, not always.

Q. When are they kept locked and when are they not? A. The head mistress has charge of them.

Q. That is why I thought perhaps you might not know about it. You know that they are sometimes locked, do you? A. Yes.

Q. Generally locked, would you say? A. Yes.

Q. From your observation, they are generally but not always. But you cannot say, because you were not in charge of it, on what system they are kept locked or unlocked? A. No, my Lord.

Q. One or other of them must, of course, have been unlocked on this occasion? A. Yes.

Q. And you cannot say which? A. No.

MR. GERWYN THOMAS: Was the witness referring to both gates when she said they might be locked. Was she referring to the main gate and the lane gate or not, when she said they were locked during playtime? A. The lane gate.

Q. Not the other? A. No.

MR. JUSTICE DEVLIN: What about the main gate then? A. No.

Q. Is it never locked? A. No.”

9

Subsequently the head mistress was called by the Defendants to correct Miss Morgan's evidence, and said that the lane gate was closed but never locked.

10

Both the Courts below have based their judgments on the negligence of Miss Morgan, but some of your Lordships are of opinion that though Miss Morgan was not negligent yet the Appellants were negligent for allowing the gate into the lane to be left unlocked.

11

It is true to say that in particulars delivered on 20th October, 1952, it was alleged that “one of the mistresses … failed to see that the gates leading from the school premises to the highway were closed”. But the case was not fought on this issue. In fact the gates were closed but not locked. No question was asked of the head mistress as to why the gates were not locked. None of the Judges who have heard the case have based their judgments on an obligation on the Respondents to keep the gates locked and the matter is not relied upon in any of the Reasons to the Respondent's printed Case.

12

I think, therefore, that the case ought to stand or fall upon the issue of Miss Morgan's conduct, and, in my opinion, it cannot be decided in favour of the Respondent without inferentially holding that education authorities are bound to keep children under constant supervision throughout every moment of their attendance at school, which, in my opinion, is to demand a higher standard of care than the ordinary prudent schoolmaster or mistress observes.

13

An analogy between the law as to the liability of owners of animals on highways was discussed in your Lordships' House; but although there are certain similarities between children of tender years and animals, I think the law as to straying animals is based upon the way in which animals have been kept from time immemorial and the impossibility of keeping them under control in all circumstances, and that there is no true analogy.

14

For these reasons I would allow the appeal.

Lord Goddard

My Lords,

15

I need not reiterate the facts of this somewhat difficult case. The question of general importance that is raised is whether there is a duty on the occupiers of premises adjoining a highway to prevent young children from escaping on to the highway so as to endanger other persons lawfully passing upon it. By “young” children I mean those of such tender years that they may be presumed to be unable to take any care for their own safety and whom a prudent parent would not allow to go into a street unaccompanied. A long series of cases culminating in Searle v. Wallbank [1947] A.C. 341 have established, now beyond controversy, that an occupier is under no duty to fence his fields, yards or other premises so as to prevent his cattle or other domestic animals from escaping on to the highway, though by so doing danger, and it may be disaster, is caused to passers by. If, then, an occupier is not liable for the escape of an animal, is he to be held liable for that of an infant, who from the...

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