Neutral Citation Number: [2004] IRLHC 337
THE  HIGH  COURT
Record Number: 2002 No. 3655P

Between:
Wayne Maher a minor suing be his mother and next friend,
Teresa Maher
Plaintiff

And

The Board of Management of Presentation Junior School,
Mullingar
								     Defendant

Judgment delivered by Mr Justice Michael Peart delivered on the 22nd October 2004:

Wayne is now a young boy of about 11 years of age who, almost five years ago at the age of 6, sustained a nasty injury to his right eye in an incident in the classroom of the defendant school, when another boy of the same age, who was sitting at the classroom table opposite Wayne, used a rubber-band as a catapult, while the teacher’s attention was not on him, and propelled his pencil in the direction of Wayne’s face hitting him in the right eye. 

Although not discovered until a few days later on examination by an Eye Specialist in Dublin, the fact is that in this incident Wayne suffered a laceration to the cornea and there was evidence of a prolapse into the wound resulting in an irregular pupil. Very fortunately for this young boy, this injury was expertly treated surgically by Mr Donal Brosnahan, and to a large extent there is relatively normal vision with improbable adverse sequelae in the future apart from some watering of the eye which is likely to remain. It is also evident on a close examination of the eye that the pupil itself is somewhat oval or elliptical in shape rather than round or circular, but it is not in my view disfiguring to any great extent when viewed other than closely. I will if necessary deal in more detail with the medical evidence; but it is first necessary to deal with the question of whether the defendant school has been negligent at all. Liability is in issue.

For that purpose I will set out in summary form the relevant evidence which was given to me yesterday. 

Having satisfied myself that Wayne understands what it means to take an oath and give sworn evidence, he gave his evidence in a very sincere manner and I completely accept, especially given that this incident occurred almost five years ago – a very long time within a life of only eleven years – that he has given his evidence truthfully as he remembers matters now, and sincerely. Neither did he attempt to distort or exaggerate what might have happened. That is in spite of the fact that in some respects I believe that his recall of this day is not clear, which is understandable, and that in some instances I accept the version of events as given by adult witnesses called for the defendant. If I may be allowed to say so, I believe that Wayne acquitted himself admirably given his age, even under an understanding, yet at times firm, cross-examination, in what for him must have been a very formal and formidable court environment, and over a period of at least one hour, and possibly more. 

A summary of the evidence:
Wayne entered first class in this school in September 1999. This is a class of between 25 and 30 children in the charge of a young teacher, Ms. Shaw. The class of 1999 was her third such class in this school. She had finished her teacher training in the summer of 1997, whereupon having spent about eight weeks at a school in Swords, Co. Dublin, she commenced as a teacher in the defendant school in 1997. 

The school day starts at about 9.30 and ends at about 3pm. There is a short break taken at about 11.15am during which time the children go out to play for a while and return to the classroom at about 11.15am, whereupon they are allowed to have a small drink and biscuit snack. When that has concluded the children tidy away their lunch boxes, clear their desks, and class resumes until lunchtime. 

On this day, Wayne was brought to school as usual by his mother’s sister whose own children are also pupils in the school, but I do not understand any of them to be in Wayne’s class. She also picks him up again at 3pm and brings him back to her own house until about 7.30pm when he is collected from there by his mother after her work. That is what happened on this particular day also. 

In the classroom there are three rows of tables, as opposed to individual desks, at which about five pupils sit on each side facing each other. Wayne occupied habitually a seat which was second in from the left of the table closest to the classroom door. He therefore had a classmate on his left, and another to his right, and others further down to his right. Others were seated at the opposite side of the table, including the boy who caused the injury. That person was seated immediately opposite him. Each table appears from the photograph to be about four feet in width, being therefore the distance Wayne was from the boy who caused this injury.
 
He says that at some time after the short morning break had ended and the class had resumed on this particular day, but before the lunch break, a person whom he believes to be another teacher called Ms. Brennan, who teaches the class just beside and adjoining his classroom (but who the defendants say in fact was a Special Needs teacher, Ms. Fitzsimons) came into the classroom. He would have been a matter of a few feet away from them, being seated near and facing the door. He says that while Ms. Shaw was speaking to this person near the door, he was looking away to his right. He heard the boy opposite him say “Look!”, whereupon he turned back and was immediately hit in his right eye by a pencil which had been propelled towards him by this boy with the aid of a rubber-band which he had in his possession. He said that just before that this boy had been playing with his pencils which he had removed from his pencil case when the other teacher came in. 

Wayne says did not shout out or make any noise which drew Ms. Shaw’s attention to what had happened to him. He stated that he was not crying after it happened.  It was the classmate sitting just to his left who went up to Ms Shaw after the other teacher left, who told Ms Shaw what had happened. He stated that it was very painful at the time, and that his eye was watery and his vision was blurred. He just remained in his seat holding his hand to his eye. He stated that Ms Shaw came over to him and asked what happened. He told her, but according to his evidence, she did not look into his eye at the time. Her evidence differs in this respect. He also thought that Ms. Brennan was still in the room at this time, but that when she had left, the class continued. He says that he was told to go and see the principal, Sr. Angela, and when he did so, Sr. Angela asked him to open his eye but did not treat him in any way. He says that he went to Sr. Angela on his own.

This is an area of the evidence where I cannot rely on the version of events given by Wayne. That is not because I think he is being untruthful, but having heard the evidence both of Ms Shaw and Sr. Angela, I have no doubt that on the balance of probabilities, their evidence is the more likely to represent what actually happened after the incident. I believe that for an 11 year old to remember back nearly half his life span is an almost impossible task, and that while of course he would remember reasonably clearly the moment of the injury, he could not be expected to recall with exactitude all the other less memorable events in the aftermath of the incident. As I have said and am at pains to stress, this is no criticism of Wayne. He has done his very best to be as exact as possible in his recollection, but where that evidence is disputed by a version of events which seems completely likely, plausible, and probable, I accept the latter. 

As it happens, nothing much turns on what exactly happened after the incident, as there is no part of the subsequent events which has been alleged to have contributed in any way to a worsening or indeed improvement of the injury. It is simply what happened up to that point in time which is relevant as far as the issue of liability is concerned. But I believe it to be fair to the defendant and its witnesses that I say what their evidence was in this regard.

Ms Shaw stated that the teacher’s desk and the cupboard in the classroom were not in fact in the position described by Wayne in his evidence. Nothing in particular turns on this, except in so far as it suggests that Wayne’s recall of everything is not completely clear and accurate. She also stated that there was in fact a second door in this classroom which gave access directly from her classroom into the adjoining classroom in which Ms Brennan taught her class. She says that she could recall the day in question, and that during the morning, as was normal, Ms Fitzsimons had come into the classroom in order to take out a number of pupils for some special tuition by way of learning support. It took about ¾ minutes to do this according to Ms. Shaw. After Ms Fitzsimons had departed a boy brought to her attention the fact that Wayne had been hurt. She could not recall exactly which boy reported it to her. She says that she went down to Wayne, and decided to bring Wayne and the other boy who had fired the pencil, to Sr. Angela. She says that she went to the next door classroom and asked Ms Brennan to keep an eye on her class while she went to Sr. Angela. They all went downstairs to Sr. Angela. She wanted her to look at Wayne’s injury and wanted the other boy to receive a reprimand from the Principal. She says that Wayne sat down and was asked to open his eye and it was watering a bit. After the reprimand had been administered to the other boy, all returned to the classroom and resumed their seats as normal. Ms Shaw also says that at 3pm, she waited to tell Wayne’s older sister what had happened. His sister was in the habit of bringing Wayne out of the school to the car in which his aunt was waiting outside.

I should just add that it has been alleged that when Wayne’s aunt had a conversation with Ms. Shaw a few days later after Wayne had been seen at the Eye and Ear Hospital by Mr Brosnahan, Ms Shaw has stated that this other boy was “very hard to mind” and “kind of hyper”. Ms. Shaw has denied ever saying this, and says that it would not even be true, since the boy in question was a normal enough six year old. She also said that if she had a difficult child she would bring him down to Sr. Angela, but that this occasion was the first and only occasion on which she had brought this particular boy to Sr. Angela to be reprimanded.

Ms Fitzsimons also gave evidence briefly and stated that she was what is now known as a Special Needs Teacher, and that some pupils in the school would be identified at the beginning of the year as needing extra tuition, and that she would during the course of a day collect pupils from the different classes and at different times. She would collect them from the classroom, and at the end of the tuition session, would leave them back to their classroom. She said that on these occasions there might be some brief conversation with the teacher – perhaps telling that teacher of some problem or even some breakthrough, with a particular pupil. This would not happen very often according to Ms Fitzsimons. She could not recall any particular incident involving Wayne.

Sr. Angela also gave evidence and I should just set this out briefly. She recalled this day. She recalled looking at his eye when he had been brought down by Ms Shaw, and formed the view that it did not require any medical attention at that time. It was normal procedure for her to contact the parents of any child who was injured, if she deemed it to be necessary, but this injury did not seem to her to be serious. She recalled using a tissue to dry out the eye which was watery, and she then told him to return to class and rest his eye and not to work too hard. She also had a few words with the other boy who had caused the injury. She also stated that this was the first and only time that this boy had been brought to her to be reprimanded.

Sr. Angela also stated that it was against the rules of the school and the classroom for children to bring rubber-bands into school. She stated that parents would be aware of these rules, but I am not exactly clear as to how the rules are communicated to the parents and the children. In any event she says that the rule is that only what is needed in the classroom is allowed, and that if a rubber-band is seen it would be confiscated.

Going back to the evidence adduced by the plaintiff, there was also evidence from Wayne’s mother, and her sister, as well as evidence from Dr Eileen Doyle who is an expert in matters related to school management. She was giving her views on the situation in the classroom on this day and what happened, and that is very relevant evidence as far as the issue of negligence is concerned in this case and I shall return to it in a moment.

I will not detail all the evidence given by Wayne’s mother as most of it relates to the care which Wayne received after she came home that evening and after she brought Wayne to the doctor. She had got a message from her sister after Wayne had been collected to say that he had received an injury but she did not get the impression at that time that it was serious. In fact it came, very understandably, as a tremendous shock, when Mr Brosnahan told her on the following Tuesday that it was a serious eye injury requiring immediate surgery. Mrs Maher reacted as any caring mother or father would on hearing this news and was very upset and stressed. She remained at the hospital with Wayne for the four days he was required to be detained. But she said at some point of her evidence that she had been upset that the school should have rung her to find out how Wayne was, and also that the class did not send a card to him and so on. However, understandable as such feelings are, they are not something which I need to consider as part of my judgment. Mrs Maher also said that after Wayne came back from hospital, she had gone to the school – not for the purpose of making accusations, but just to find out what had happened. She says that she spoke to Ms Shaw and Sr. Angela. Ms Shaw recalls speaking to Mrs Maher but does not recall speaking Wayne’s aunt who said she had called to the school on the Tuesday after the incident and spoke to her at the door of the classroom. That is a conflict of evidence which is both difficult and unnecessary to resolve.

The evidence of Dr Eileen Doyle:

She stated that she had been a teacher, as well as a trainer of teachers, and had significant experience in the management of schools. In relation to the latter she had been on Boards of Management of schools, and had also some involvement at a national level in relation to school management matters.

She confirmed that she was contacted by the plaintiff’s solicitors, and the facts of this case had been outlined to her. She had spoken to Wayne for the first time yesterday. She had been told the facts as they are set forth in the Statement of Claim. She opined that the standard of care in the classroom would vary depending on different circumstances. She also said that there can be some variation between what would be regarded as ideal, and what actually happens in practice in different situations and at different times, and that the younger the child the greater the onus to be vigilant, and that it was essential that there be constant and appropriate supervision of young children. In relation to the dangers posed by a child having a rubber-band, she stated that this was a potentially dangerous object, and that it would be appropriate for the teacher to go down to the child who had it, and remove it quickly.

Dr O’Reilly also expressed the view that the presence of a second teacher in the classroom would make more difficult for the class teacher to be in total control.

Dr O’Reilly was cross-examined by Mr Fox for the defendant. She was able to confirm that the school times of 9.30am until 3pm was normal, including the short morning break and a lunch break. She said that it was a good idea for children to be able to go outside and play during break times, although she mentioned that this was becoming more difficult nowadays because of litigation arising sometimes. She also confirmed that having one teacher in charge of 25-30 children in a class was satisfactory – in fact she said that it was a much smaller ration than in many city schools. She expressed the view that there was nothing problematic or inappropriate about having the teacher’s desk and a cupboard in a class of this kind, even though that would mean that from time to time a teacher’s back would be turned away from the pupils. She also felt that the seating arrangements in this classroom were satisfactory. She was asked if it can happen that another teacher would come into the classroom. She replied that it can be a worry that supervision can be adversely affected by another teacher being in the room, and that if another teacher needs to chat to a teacher, it can normally take place outside the classroom. She was asked specifically if it was normal or usual for a remedial teacher to come into a classroom to take out pupils for tuition, and she stated that the practice varies in this respect, and that in some instances the pupils would leave the class and go to the remedial teacher rather than the reverse. She accepted that it was not an unusual practice for the remedial teacher to call to the classroom in order to collect such pupils, as happened in the present case. She was asked in the particular circumstances of this case how a teacher in a class could be expected to watch each child all of the  time, and trainee teachers were often told that they needed eyes in the back of their heads. She was asked how could a teacher have stopped this boy doing what he did with the pencil, and she stated that it could only have been prevented if the teacher had been watching that pupil all of the time. 

Conclusions on the issue of liability:

Firstly I am satisfied in relation to the facts of the case that this was normal class of six year olds and that there is no evidence that there was any particular or unusual or special difficulty as far as the known behaviour of these children is concerned. I am sure that they were no better and no worse than any other such group. I am also satisfied from the evidence which I have heard that it was entirely appropriate that one teacher should be in charge of this class. Indeed it is normal for much larger numbers of pupils to be in the charge of a single teacher. There is also no doubt as far as I am concerned that what happened on this morning happened ‘out of the blue’ so to speak, and that the boy in question was not known to be difficult to any special or abnormal extent. Ms.Shaw’s evidence, which I accept, the more so since it is confirmed by Sr. Angela, is that this was the first and only occasion on which she had to have him reprimanded by Sr. Angela. Wayne has given his evidence completely truthfully and honestly and has said that this boy, while the teacher was talking for a short time to another teacher (who, by the way, I accept on the balance of probabilities, must have been Ms. Fitzsimons) simply took a pencil from his pencil case and, using a rubber-band which he had somewhere either on his person or in his pencil case, propelled it into Wayne’s right eye, causing him a serious injury, but one from which luckily he has substantially recovered. I am satisfied that there was no warning that this might happen as far as Ms. Shaw was concerned. Even though it is a school rule that rubber-bands are not to be brought into school, it is not a reasonable imposition on teachers to search thoroughly the pupils of a class to ensure that an object such as a rubber-band is not secreted either in their clothing or in their schoolbags. I am satisfied that this was just something which happened without warning and suddenly while the teacher’s attention was elsewhere.

The question still remains whether what happened could be classified as negligence on the part of the school. It is pleaded in the Statement of Claim in this regard that that the school failed to provide the plaintiff with the means by which to avoid unsupervised contact with the other pupil. I am not quite sure what this is intended to mean. It is also pleaded that the school failed to provide the plaintiff with adequate protection from the pupil, and from assaults on the school premises, failed to any or any adequate precautions for the plaintiff’s safety while in the classroom, and exposing the plaintiff to risk of damage or injury which they knew or ought to have known. There are other pleas in the usual form for cases of this nature, including that there was inadequate training for teachers in school in relation to the supervision of children in the classroom. In my view the evidence does not support these pleas, including the evidence of Dr O’Reilly which I have referred to. I am left with the overall impression that this classroom was conducted in a perfectly normal way, and a way which does not fall short of reasonable standards for such classrooms, and I believe that this is the view of Dr O’Reilly also, who accepted that this teacher would have needed eyes in the back of her head if this incident was to be prevented. She also said that it was not unusual for the remedial teacher to call into the classroom for the purpose of taking out pupils in need of tuition. I am satisfied that while she stated that it was also the practice that pupils would leave the classroom and go to the remedial teacher, it was normal and usual for the reverse to occur. She expressed no actual criticism of that practice happening.

Mr Aidan McGovern SC highlighted the fact that Ms Shaw had not seen the rubber-band in question before this incident took place, even though it is clear that it must have been there. He said that the evidence was that this boy had taken his pencils and the rubber-band out of his pencil case and that she ought to have seen it. She has said that she did not. He submits that therefore that her level of supervision was not adequate in the circumstances of this case, and that had she seen the rubber-band it would have been confiscated and the injury would not have occurred.

Mr Finbarr Fox SC for the defendant on the other hand has submitted that the standard of care to be imposed on a school teacher is the standard of the prudent parent, and that it is a duty to take reasonable care. He says that this was a well behaved class and that the presence of Ms Fitzsimons in the classroom for the time she was there is not relevant. He submitted that the evidence showed that there was no suggestion of misbehaviour in the classroom, and that what happened was simply a sudden act which could not have been anticipated.

Mr McGovern referred the Court to a judgment of Mr Justice McCracken in the Supreme Court in Murphy v. County Wexford VEC, unreported, 29th July 2004, in which at page 5 thereof, where the learned judge states as follows:

	“Quite clearly, school authorities are not insurers of the pupils under their care. However, they do owe a duty to those pupils to take reasonable care to ensure to ensure that the pupils do not suffer injury. To do this, some degree of supervision is clearly required. The extent of such supervision will depend on a number of factors, for example, the age of the pupils involved, the location of the places where the pupils congregate, the number of pupils which may be present at any one time, and the general propensity of pupils at that particular school to act dangerously.”

I respectfully agree with this. Mr McGovern however calls these words in aid of his submission that the vigilance required in respect of a class of six year olds is a heightened one given their young age, and that in the case of older children, the degree of supervision required would be somewhat lower. In the present case, I believe one must look at the actual situation in this classroom on this morning. Ms Shaw had been teaching these children for a couple of months by the time this incident occurred. No doubt she had got to know those in her care. She says in particular that the boy who hurt Wayne was a normal child and that she had not had to send him to Sr. Angela to be reprehended on any occasion before or after this incident. One has to ask what Ms Shaw, or the school itself could have done to ensure to any absolute extent that this incident would not occur. I am of the view, as I have said, that in order to provide any additional insurance against such an occurrence, it would be necessary to search each child’s person and schoolbag upon arrival, and that is an unreasonable burden and one not required in my opinion in discharge of the duty of care owed by the school to its pupils.

It goes without saying that there is a duty to be vigilant to an extent that is within the bounds of reasonableness. That involves a measure of supervision appropriate to the needs of any particular situation, and some factors to be taken into account in the passage appear in the judgment of McCracken J above. But for a breach of that duty of care to occur, there must exist in addition to the relationship of proximity (which clearly exists in the case of a school and pupil) the requirement of foreseeability. In the present case that means that before the defendant school can be liable, the Court would have to be satisfied that it is reasonable that Ms Shaw should be expected to anticipate that the moment she turned her back (not literally) on the class in order to have a very short conversation with Ms Fitzsimons at the door of the classroom, it was probable or likely that some behaviour would occur which would cause injury to one or more of the pupils in her charge. I do not believe that the evidence supports the submission that she ought to have foreseen that this might happen. There can of course be situations in any school where the school is well aware of potential dangers, where for example there has been a history of disruptive and even violent behaviour on the part of a pupil or a group of pupils. Bullying would be a case in point. The duty of care on a school in such circumstances would extend to taking appropriate account of these known circumstances when deciding on the appropriate level of supervision in the school, perhaps particularly during break or recreation periods when pupils are outside the more controlled environment of the classroom.

It has been said that the standard of care required in school is that of a prudent parent. The school is said to be ‘in loco parentis’. In other words, the school is expected to be no more and no less vigilant of those in its care than a prudent parent would be in his or her own home. In any normal child, if there be such a creature, there is always a certain propensity for horseplay and high spirits. Indeed, if it were not so, there might be some cause for concern. It is inevitable that in the ordinary rough and tumble that is part and parcel of the daily life of a six year old child, cuts and bruises will occur. I am not equating what happened to Wayne as coming within the category of unblameworthy conduct on the part of his assailant. But I am asking, albeit rhetorically, if it can be reasonably said that if a group of children are playing at home in the garden and a neighbour’s child falls while being chased by the others in a game of ‘tig’ while the supervising parent is in the kitchen boiling a kettle, that parent has been negligent in a way that renders him/her liable in damages for the injury? I do not think such a situation can amount to negligence. Again, I ask rhetorically, is there any reason why if the same situation occurred in school as opposed to at home, the school should be any more liable if there is supervision provided which reasonably meets the needs of the particular situation? I think not.

It is perfectly understandable that a parent of an injured child should wish to seek redress for the injury on his behalf. But it must be remembered that simply because an injury takes place in a school does not mean that the school management or any individual teacher has been negligent. Negligence must be established, and in this case I find no such evidence.

It is with great regret as far as the plaintiff is concerned that I must find that the case of negligence against the defendant school has not been proven, and in those circumstances I must dismiss the claim.

Approved:  Peart J.