Carmarthenshire County Council v Lewis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE DENNING |
| Judgment Date | 13 November 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1113-1 |
| Court | Court of Appeal |
| Date | 13 November 1953 |
[1953] EWCA Civ J1113-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Denning and
Lord Justice Romer
MR. D. LLOYD-JONES, Q.C., and MR. NORMAN RICHARDS (instructed by Messrs. A. V. Vandamm & Company, agents for Messrs. Le Brasseur, Davis & Son, Newport, Mon) appeared as Counsel on behalf of the. Appellants (Defendants).
MR. EDMUND DAVIES, Q.C., and MR. GEOFFREY JENNINGS (instructed by Messrs. Davis Arnold & Cooper, agents for Mr. T. Llewellyn Jones, Neath) appeared as Counsel on behalf of the Respondent (Plaintiff).
This is a tragic case. A small child aged some four years, while at a school under the management of the Defendants, strayed into the road. The late husband of the Plaintiff, the driver of a lorry, in seeking to avoid doing injury to the child, drove into a telegraph post and, as a consequence, was killed. There was no evidence calledas to the actual accident because the case proceeded on the basis that he was driving carefully and that the only cause of his death was his effort to avoid injuring the child.
The child was, as I have said, just 4 years old and was at school. It was taken to the school by its mother in the morning, and we have photographs and a plan. The school faces on to College Street and there is an entrance into College Street. There is then a yard or open space. Then there are the buildings in which the children from 7 to 11 are taught. Then there is another yard, and then there are further buildings which contain the schools for the children from 5 to 7 and also a nursery school for children such as this from 3 to 5. The yard in between the 7 to 11 building and the building which I have just referred to has a gate opening out of it on to a lane which leads down on to College Street, which is a fairly busy street. The Plaintiff alleged that the death of her husband was caused by the negligence of one or other of the school teachers, and the learned Judge has found that that claim is made out, and the Defendants appeal.
I will take what happened from the Judgment. The straying on to the road happened after the morning period in which the children were taught in the classroom was over, and apart from the special arrangements to which I shall refer, when that was over for some time the children were taken into what is called a playpen (which was a little locked enclosure) and they there played under the supervision of one of the mistresses — on the day in question, a Miss Rees. At the time when the other children went into the pen to play, "It is Miss Morgan's habit, during this period, to go for a walk in the town and to take two of the nursery children with her. David" — that is the child who strayed — "had been hoping for this treat for some time past, and on the morning of this day his mother, when she brought him to school, bad asked Miss Morgan that he should have it. Miss Morgan decided to take him and another child of about the same age. So at 12.15, the others being out in the play-pen, Miss Morgan got the two children ready in the classroom and made ready herself. Then shewent out to the toilet which is off the play-pen just beyond the cloakroom. As she got out she found that a little child in the play-pen had fallen and cut itself. She took it into the cloakroom and cleaned it up and attended to it. This occupied about 10 minutes. Then she decided to take it to the headmistress in case a doctor ought to see it. She went back into the cloakroom. There was no one there, and she was crossing the vestibule when she saw David Morgan, who had been brought back by a bystander after the accident".
On that short statement of facts two questions which, of course, are related, arise. One is — as appears from the Judgment — Was the teacher careless? The second question is, if there was carelessness or negligence at law within a certain scope, was the deceased within the scope of the reasonable contemplation of the teacher, on the principles which I will not repeat but which can be found laid down, for example, in two or three of the speeches of the noble and learned Lords in Borchill v. Young, 1943 Appeal Cases, page 92. In considering the question whether Miss Morgan was careless or negligent, the learned Judge first of all considered two matters which she, herself, had put forward as relevant to the issue. One was that the yard in between the classroom and the school into which this child and the other child got — it was common ground that they could open the door — would have had in it at that time the children from 5 to 7 who would be playing under the supervision of one or, I think, two mistresses. The other matter which she put forward which came out in cross-examination was that the door into the lane was usually kept locked. The learned Judge said, and, with respect, I agree, that if there had been two teachers out in the yard who could have supervised the boy should he have opened the door and got out as far as that, that would have been very relevant, and in his view would have been an answer to any suggestion of negligence. But that evidence was not correct. The headmistress was called and she said that the infants were at dinner until 12.30. On that pointthe learned Judge said, "I find it difficult to believe that she was ignorant of their dinner hour, or that she could really have thought that the side gate was usually kept locked". One feels great sympathy with Miss Morgan. Even if she was (as the learned Judge found) negligent the consequences were very terrible. But I think it is clear from that that Miss Morgan did not create a wholly favourable impression on the learned Judge and so far as that was relevant to his decision that was a matter which he could weigh and we cannot.
There is another point which I think I will mention now to dispose of it. The learned Judge made some complain that Miss Rees was not called and he was not given more information about the injury to the child. Of course, it is a matter for Counsel to decide what witnesses he shall call but, of course, if the case had been that Miss Morgan was deflected from taking steps which she normally would take by a sudden emergency that, of course, would have been very relevant in applying a standard of what a reasonable person does in the circumstances. He says, "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...
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