Griffiths v Smith
| Jurisdiction | UK Non-devolved |
| Judge | The Lord Chancellor,Viscount Maugham,Lord Wright,Lord Porter |
| Judgment Date | 12 December 1940 |
| Judgment citation (vLex) | [1940] UKHL J1212-2 |
| Date | 12 December 1940 |
| Court | House of Lords |
[1940] UKHL J1212-2
Lord Chancellor
Viscount Maugham
Lord Wright
Lord Romer
Lord Porter
House of Lords
After hearing Counsel for the Appellants, as well on Tuesday the 17th as on Thursday the 19th, days of September last, upon the Petition and Appeal of John Griffiths and Margaret Elizabeth Griffiths (his wife), Paupers, of 91, Eden Street, in the City of Liverpool, in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 8th of March 1939, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Charles Smith, Walter Bertram Foden, Charles King, Philip Winram and George Crowther, and also upon the printed Case of the Right Reverend Albert Augustus David, Lord Bishop of Liverpool and Cyril Frederick Twitchett, sued as representing themselves and all other the members of the General Committee of the Church of England Schools Society, George Brocklehurst, James Calder, Ernest Cranstown Given, John Glynn, Kenneth Thorley Graham and Samuel Stopford Hall, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 8th day of March 1939, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
This is an appeal from the Court of Appeal (Sir Wilfrid Greene M.R., McKinnon and Finlay L.JJ.) affirming the judgment of Tucker J. at Liverpool Assizes in favour of the Respondents.
The first five Respondents are the Managers of a public elementary school in Liverpool, known as St. Clement's Church of England School, and were the principal defendants in an action brought by the Appellants, Mr. and Mrs. Griffiths, for damages in respect of personal injuries sustained by the last-named when upon the school premises, owing to a shocking accident which occurred on the evening of December 12th, 1934. Mr. Griffiths, whose son was a pupil at the school, was one of those invited by the headmaster, with the authority of the Managers, to attend an exhibition on the premises of work done by the boys. There were also to be songs during the evening which the pupils had learned while attending the school. While this display was going on, the first floor of the school premises collapsed; many persons, including Mrs. Griffiths, suffered serious injuries and two persons were killed.
There is no dispute that the floor was in a dangerous condition. The school building was nearly a hundred years old; the method of support of the floor was quite obsolete; the defects in the structure were obvious to inspection; there had been no survey of the building for thirty years prior to the accident. Mr. Justice Tucker found as a fact that those who were charged with the duty of keeping the premises in repair had not taken reasonable care to discharge that duty. This view of the matter has not, I think, been challenged in any stage of the litigation, and on the undisputed evidence no other view is possible.
The duty of keeping the schoolhouse in good repair rests upon the Managers (Education Act, 1921, section (2) (d)). This duty they are to discharge "out of funds provided by them"—that is to say, they have no call upon public funds for the purpose. The sources to be drawn upon are, in practice, voluntary subscriptions or donations, and in some cases trust funds or endowments. This provision was originally enacted in the Education Act, 1902 (section 7(1)(d)), but the Act of 1902 was repealed by the Act of 1921, which reproduced in substance the contents of the earlier Act. The Education Act of 1902 effected a compromise under which "non-provided" schools (which at an earlier stage were commonly known as "voluntary" schools) were maintained and kept efficient by the local education authorities, and thus indirectly received the support of local rates for that purpose, on the condition that the managers of the non-provided school
"shall provide the schoolhouse free of any charge, except for the teacher's dwellinghouse (if any), to the local education authority for use as a public elementary school, and shall, out of funds provided by them, keep the schoolhouse in good repair. and make such alterations and improvements in the building as may be reasonably required by the local education authority: Provided that such damage as the local authority consider to be due to fair wear and tear in the use of any room in the schoolhouse for the purpose of a public elementary school shall be made good by the local education authority;".
It is the provision and maintenance by the managers of the school fabric in good repair which is the quid pro quo for the advantages conferred on non-provided schools by the scheme of the Act, with the result that the managers have extensive powers in the appointing and dismissing of teachers, and religious instruction may be given in accordance with the provisions of any trust deed relating to the school. It cannot be too clearly understood that the managers of a non-provided school are not entitled to claim that it should be maintained by the local education authority as a public elementary school unless they perform their part of the statutory bargain and keep the schoolhouse in go repair. The Statute, as I have already observed, says that the managers, are to do this "out of funds provided by them", and the explanation of the deplorable condition of these school premises is that sufficient funds were not forthcoming from private sources to do the necessary repairs. In such a case the managers should exercise their powers to bring the school to an end (see sections 38 and 40 of the Education Act, 1921); they have no right to attempt to carry on the school when the premises are in a condition which is dangerous to the safety of children and teachers, and it is no excuse for doing so to say that adequate funds were not forthcoming.
The body of managers constituted for a "non-provided" public elementary school is the creation of the Statute, and the statutory provision is now to be found in section 30 subsection (2), of the Education Act, 1921. That section provides that not more than four of them shall be "foundation managers", appointed under the provisions of the trust deed of the school, or under an order made in pursuance of the Education Acts. To these are to be added further managers not exceeding two in number—in the case of Liverpool—by the local education authority. To the managers thus appointed of a "non-provided" school is entrusted the management of the school in all matters not expressly reserved to the local education authority. This statutory body of managers, charged with these important functions, is therefore quite distinct from any general managerial body which may have been constituted or contemplated by the trust deed under which the school came into existence; these latter have for practical purposes disappeared, and the new statutory body is the only body with authority to manage the school.
Counsel for the Appellants put their claim on the basis that the Managers had invited Mrs. Griffiths to come upon premises, which the Managers occupied and controlled, without warning her of their dangerous condition and without putting them in a proper state of repair. So stated, the claim is to enforce a common law liability which is generally illustrated by referring to the decision, given more than seventy years ago, by the Court of Exchequer Chamber in the leading case of Indermaur v. Dames (1867) L.R. (2) C.P. 311. Mr. Justice Tucker found this claim proved, citing in support of the view that the Managers must for this purpose be regarded as occupiers, an unreported decision of Mr. Justice Singleton in the case of Tierney v. Smith and others, which dealt with injuries sustained by another plaintiff arising out of the same accident. The Court of Appeal took the same view, and, apart from the defence raised under the Public Authorities Protection Act, 1893, both the Courts below would have decided in favour of the present Appellants.
I entirely concur and entertain no doubt that if Mr. and Mrs. Griffiths had issued their writ more promptly, they would have had an effective cause of action against the Managers (she, on account of the injuries she sustained owing to their breach of duty, and he, because of the resulting loss of his wife's services while she was incapacitated). But the writ was issued on October 12th, 1936, twenty-two months after the accident, and the Managers thus have the opportunity of pleading that they were protected by the Public Authorities Protection Act, 1893. The sole question in the Appeal is whether this plea should prevail.
Section 1 of the Public Authorities Protection Act (now in substance reproduced with the substitution of twelve months for six months in the Limitation Act, 1939) begins as follows:
"Where after the commencement of this Act any action, prosecution or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect:
(a)...
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