Rich v London County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 22 April 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0422-1 |
| Court | Court of Appeal |
| Date | 22 April 1953 |
[1953] EWCA Civ J0422-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Hodson, and
Lord Justice Morris
MR. H. LLOYD-JONES. Q. C., and MR. M.N. LANTON (instructed by Mr. J.G. Barr) appeared on behalf of the Appellant (Defendants).
MR. MONTAGUE BERRYMAN, Q. C., and MR. S.I.R. CRAIG (instructed by Mr. Mark Lemon) appeared on behalf of the respondents. (Plaintiffs).
The London County Council, the Defendants in this action, as education authority, have under their care and management a number of schools in the area of the County of London, and among those schools is one in Montem Street, Tollington Park, London, N.4.
A little boy, Derek Anthony Rich, was in the infants' part of that school, and on the 15th February, 1950, he sustained an accident of a serious and distressing character. He lost his left eye through the accident; and one can well understand the anxiety of his parents. The injury was caused by the fact that another boy of about the same age, 7 years, threw a piece of coke at Derek Anthony Rich and hit him in the eye. It was the second piece which the boy had thrown.
Derek Anthony Rich, by his next friend (his father), and the father himself brought an action against the London County Council claiming damages for personal injuries and in respect of the expense which had been incurred. It was alleged that the London County Council had been guilty of negligence, and the negligence alleged, so far as is material to this action, is contained in these Particulars: "The Defendants their servants or agents failed to provide adequate or proper supervision while the children were playing in the said playground. The Defendants their servants or agents failed to fence in or safeguard against interference by children the said heaps of coke, well knowing that the said children were in the habit of playing on the heaps of coke and using pieces thereof as missiles."
There was a heap of coke in the boys' playground, sometimes called the senior playground. There was nothing of that kind in the infants' playground, to which (according to the rules which were well known by all the children) Derek Anthony Rich ought to have confined his activities during playtime.
Upon the hearing of the action evidence was given before Mr. Justice Slade on Friday, the 28th November, 1952, and on the following Monday, and the Tuesday the learned Judge gave a Judgment in which he considered with care both the facts and the law. He reached the conclusion that the Plaintiffs were entitled to succeed and he gave Judgment for them, assessing the damages to which the boy was entitled in the sum of £1.750, and he awarded the father £384, damages, the expense to which the father had been put, largely in respect of specialist charges for the treatment of the boy.
The Defendants appeal against that Judgment. Mr. Lloyd-Jones on their behalf has submitted to this Court that the Judgment of Mr. Justice Slade is wrong, that it goes too far, and that it places too high a duty upon those who manage and conduct a school such as this was.
Mr. Berryman, on behalf of the Plaintiffs, has submitted to this Court that this was a question of fact for the decision of the learned Judge, that he was the Judge of fact, that there was evidence upon which he could come to the conclusion at which he arrived, and that this Court ought not to interfere with the Judgment.
I need hardly say that a finding of fact by the Judge of first instance based upon the evidence of witnesses whom he sees and hears will always receive full consideration in this Court and it is only if Court is satisfied that the conclusion of the Judge is wrong that this Court will interfere. Mr. Berryman is right to a large extent in describing this question as a question of fact, but before a proper decision can be reached upon that question of fact it is necessary to ascertain what is the measure of duty owed to a child by those responsible for the management of a school.
When this school was built provision was made for storing coke, or coal or other fuel, and the same sort of provision was, I imagine, made in other schools, but after there had been a short period of war it was found that there were difficulties in obtaining regular supplies of coke or coal. The desire of every authority is to have schools attended by children sufficiently heated. As there were difficulties in obtaining supplies of fuel regularly, it became essential to have quantities in hand over and above that which could be stored in the places provided for storage; and that, we are told, applied in schools throughout London. The evidence shows that at one time in one part of the playground of this school there were about 60 tons of coke, and quite often 40 tons. In February, 1950, there were about 3 tones.
The learned Judge, in considering this part of the case, was of the opinion that Defendants could do nothing else than store additional coke somewhere, and, as there was no place in which they could put it under cover, they put it in the senior boys' playground.
A boy going to the infants' side of the school could go in one of two ways. One was to enter the school premises from Montem Street, and thereafter he would pass, though the senior boys' playground, close by the place at which this heap of coke was. There was an entrance, and the door was not kept locked, from one playground into the other, but when he reached the infants' quarters a boy was not supposed to go into the other parts of the school premises. If during school hours he was, with others, let out for a quarter of an hour's playtime, it was his duty to keep to the infants' playground, and that was well known to all.
The fact that there was in the senior boys' playground this heap of coke was an anxiety and a burden to theteachers and to the heads of the school. No-one liked it, and it is quite easy to see why. Coke is dirty and dusty, and if children play upon it or run against it they get dirty and dusty. The dust blows about, and over and above that if children are playing on it, and running up and down it, one of them may fall and receive some sort of injury, and I daresay that it is quite likely that, when they are playing about, one of them may throw something at another. Strange to say there does not seem to be any evidence that there was any throwing of coke by one child at another child until that which caused this accident. The fact that the coke was exposed in the yard so that children could run on it meant too that the coke would be damaged and be less effective the purpose for which it was regarded. It was regarded by the authorities as a danger.
The Head Mistress had complained and reports had been made from time to time. I daresay that happened at every school where coke had been piled in the playground. It takes up part of the space which is required as a playground; it is inconvenient, and it is unpleasant. That was all known.
It was known too that quite often children throw things at one another, not coke, but missiles, it was said. Everyone knew that it was wrong. The little boy who lost his eye was asked about it, and he said that he knew that things should not be thrown; he knew that he would be punished if he threw things. Some children picked up the coke and threw it against the wall. That, I suppose, made a noise. It was fun, and they liked doing it — not the infants of whom the infant Plaintiff was one, but the children in the senior part of the school.
There was a school keeper, and he gave evidence. Hesaid that when he found boys playing on the coke he always chased them away; they were out of hand a little at one time, but in January, 1950, another Head Master came, a Mr. Fish. Apparently Mr. Fish was stricter than his predecessor had been, and there was no further trouble after that time in regard to playing upon the coke. That was the evidence of Mr. Whitney, and the learned Judge accepted it.
As I have said, Mr. Justice Slade found that there was no practical alternative for the County Council to adopt; they had to have a heap of coke in the yard. Further, he found that the infants were supposed to keep to their own part of the playground, and not to go into the playground which was for older children. He found that there was adequate supervision. He accepted the evidence of the Head Mistress and of the other mistresses and helpers who were called, that there was adequate supervision, and that no supervision would have prevented this accident, for children do some things at a time when the teacher's back is turned. He found too that the boys knew that they would be punished if they threw missiles, and, he said: "The question resolves itself into whether something ought to have been done physically to prevent access to these dumps of coke so long as they remained in playgrounds accessible to children, and to as many as 270 children in the Infants' school alone."
I have pointed out that the dump or heap of coke was not in the infants' part, though it is right to say that infants could get through the doorway into the other playground. From the evidence in this case it appears as though that is what must have happened for the one who did the injury was a boy called Malcolm Forrest who was seen by Derek Rich to come round the corner to the place where the infant Plaintiff was, almost opposite the coveredplayshed in the infants' playground. Malcolm Forrest and another boy each had a piece of coke or pieces of coke. Malcolm Forrest had a shot at Derek Rich and hit him on the leg. Derek Rich stooped down in order to pick up the piece to throw it back at...
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