Palmer v Cornwall County Council [2009] EWCA Civ 456

[2009] EWCA Civ 456Case No B3/2008/2783
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
Recorder Chippindall
7TA01701
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2009
Before
LORD JUSTICE WALLERVice President of the Court of Appeal, Civil DivisionLORD JUSTICE LONGMORELORD JUSTICE RICHARDS
Between
PalmerAppellantCornwall County CouncilRespondent
Timothy Grice (instructed by Messrs Harris Fowler Solicitors) for AppellantJonathan Hand (instructed by Messrs Foot Anstey Hancock Caffin Solicitors) for RespondentHearing Hearing date : 29th April 2009
JudgmentLord Justice Waller :Introduction
[1]On 12th July 2001 the appellant, then aged 14 and a half and a pupil at Newquay Tretherras School in Cornwall, was, during the lunch break and when out in a play area, hit in the eye by a rock thrown at a seagull by another pupil. Proceedings were commenced against both the local education authority (the respondents) and that other pupil but only in July 2007. An order was made for the trial of liability only. Shortly before that trial, which commenced on 28th September 2008, the proceedings against the other pupil were withdrawn. Following the trial judgment was reserved and by a judgment handed down on 28th October 2008 Mr Recorder Chippindall dismissed the appellant’s claim against the respondents.[2]The appellant had made a claim under the Occupiers Liability Act and a claim in negligence; both were dismissed by the recorder. On appeal only the claim in negligence is pursued. Permission to appeal was granted by Lady Justice Smith, she indicating that she thought the recorder’s finding in favour of the respondents that they had properly supervised the boys was “perverse”.

The facts

[3]On 12th July 2001 the appellant was at school as usual. The school was a mixed school of a significant size. The accident occurred at lunch break which ran from 1.20pm until 2.00 pm. The arrangement was that pupils ate their lunches (either pack lunches brought in by themselves or a lunch supplied by the school) indoors. It was forbidden to take food outside although this prohibition, we were told, was more honoured in the breach. Following their lunch many pupils came outside for a period of free time during which they might play games or simply relax. Since he was 14 going on 15 the appellant was in year 9. There was a designated area for years 9 and 10 at one end of a field and a designated area for years 7 and 8 at another. Each area was about the size of a football pitch.[4]The appellant was later coming out onto the field than others in years 9 and 10 because he had been held in detention, and thus he came out at about 1.45 pm. Very soon after he joined his year group he was struck by a large stone or rock which seriously injured his eye. It seems that one of the year group, Mathew Lamb, had placed some food on the ground to tempt seagulls to swoop down so that he could throw stones or rocks at the seagulls. In throwing one such rock he accidentally hit the appellant in the eye.[5]Supervision of the play areas on the field was organised on a rota basis and was carried out by dinner ladies. There were two dinner ladies on duty, Josie Brewett and Andrea Grace, and as between them it was arranged that one was responsible for supervision outside and the other was responsible for supervision inside, moving to the outside as the indoors emptied of pupils. The precise timing of that change of position is not material because it is not in dispute that only one dinner lady, Josie Brewett, was on duty outside at the time of the incident. It is suggested that the judge may have been under the impression that at the time of the incident both ladies were outside. In my view that is a misreading of the judge’s judgment.[6]The critical aspects of the case on which the judge had to find the facts and which were in dispute related to(1) the number of pupils under the supervision of the one supervisor Josie Brewett;(2) what was the proper ratio of supervisor to pupils so as to provide proper supervision;(3) whether, as certain of the witnesses called for the appellant maintained, throwing stones had occurred on a number of occasions prior to the incident in which the appellant was hit in the eye;(4) the length of time over which stones were being thrown on the occasion when the appellant was hit; and(5) whether whatever supervision had been in place this incident would have happened anyway so that even if negligence was established, that negligence did not cause the appellant’s injury.[7]The above issues are in some cases to a significant extent and in others to a minor extent in issue on the appeal. It is convenient to take the points in order and make findings in relation to them.

Number of pupils

[8]So far as the number of pupils was concerned it was common ground that there were approximately 270 pupils in each year group. The year groups being supervised by Josie Brewett were years 7and 8 on one part of the field (itself as I say the size of a football pitch), the age range being 11 to 13 years old; and years 9 and 10, age range 13 to 15, on the other end of the field (the same sort of size). That would total 1080 pupils.[9]There was then evidence to the effect that some pupils in year 10 would be in a different area, some would be absent on geography trips or because they were ill or simply because they had stayed indoors. The appellant’s pleaded case was that there were in excess of 300; Josie Brewett’s evidence was that there were 150; the recorder’s finding was that the number of “about 300” was most likely although when he ultimately made his assessment that the number of supervisors was adequate the figure became 200 to 300.[10]Mr Grice submitted that the recorder should have found that there were more probably over 400 pupils. Mr Hand sought to defend the recorder’s finding.[11]Since in my view nothing would turn on the question whether the number was 300 or 420, I am prepared to accept the recorder’s estimate without further detailed analysis. The reason why I say nothing turns on the difference is that so far as supervision is concerned, Josie Brewett’s evidence was that she directed her attention to the year 7 and 8 pupils, and the year 9 pupils, plus those left of year 10, received “only the occasional glance”. She explained why she paid greater attention to the younger age group and, as the judge found, that is entirely understandable but the consequence was that there was not even one supervisor with 100% concentration on years 9 and 10. Furthermore, that one supervisor was concentrating on years 7 and 8, which made up the majority of the pupils on the field.

Did the school have an appropriate ratio of supervisors to pupils?

The recorder was highly critical of the respondents in failing to adduce certain evidence:

“Mr Dunn was not called before me. As a result the Defendant has failed to adduce any evidence, beyond the document at page 114A and following, of any risk assessment, guidance, warnings, or training in relation to the supervision of the lunchbreak in the index playing field which relate to Newquay School in 2001, whether written down or not.”
He continued as follows:- “As a matter of general record, it is, quite simply, appalling that there is in relation to matters of safety of pupils and staff in an institution of this size such poor record-keeping, and inability to provide this court with basic evidence as to what was and what was not actually done to make and keep safe this school for its staff and pupils.”[13]The appellant’s lawyers produced a document published by a different education authority, Bedfordshire County Council. Their guidance relating to midday supervisory assistants was, so far as the pupils of the ages with which we are concerned, as follows:
“(a) Junior schools One midday supervisory assistant to 40 pupils (b) Middle schools One midday supervisory assistant to 50 pupils (c) Upper and High schools One midday supervisory assistant to 100 pupils”
This guidance was put to Mr Bales, the assistant head master at the time of the incident and employed at the school for 35 years, and his answers were as follows:
“Q. . . . [in the middle school, i.e. years 7 and 8] there would be 50 – one midday supervisory assistant to 50 pupils. I am looking at page 103 - - A. Do you think that includes the staff, the canteen staff? Because we have not gone into that. I mean, the number of people in the canteens who have a duty to supervise the children in the canteens is quite large. So I think, you know, we would be quite close to that number. Q. But you would think, from your experience, that a ratio of 1 to 50 supervising - - - A. Only with those younger children. Q. Right . A. Yes Q. All right. And then when you get up to the upper and higher schools, which take it is 8, 9, 10, and 11 - - no, 9, 10, 11 - - - A. 9, 10, 11, yes. Q. 1 to 100 pupils? A. Yes. Q. Right. And you think that is pretty reasonable? A. I would think if you take into account the number of adults who were working at lunchtime in direct, you know, contact with children, because you have got librarians and people like that as well as all the deputy heads and assistant heads.”
Q. Right . A. Yes

Q. Right. And you think that is pretty reasonable?

[14]I would not myself construe the Bedfordshire guidance as including reference to librarians, deputy heads etc but as a guidance applying to midday supervisors such as Josie Brewett. This evidence of Mr Bales may have led the recorder to find the Bedfordshire ratios were “about right” although he had heard no expert evidence.[15]In this area it is not possible to say that a certain ratio must be adhered to in each and every case; all must depend on the circumstances and the assessment of risks. But what one can say is that, as Josie Brewett appreciated and as confirmed by the Bedfordshire guidance, younger children need closer supervision than older children, but all need supervision. If there were 300 pupils out on the field at the time of incident, of which it would seem clear that well over half would be years 7 and 8, it is doubtful whether two supervisors concentrating 100% on those age groups would have been sufficient. Certainly to ask one supervisor to supervise well over 150 year 7 and 8 pupils was quite inappropriate and, since that led to that one supervisor only being able to glance occasionally at years 9 and 10, that left those age groups effectively unsupervised.[16]In so far as the recorder found the supervision of the years 9 and 10 as adequate, I would agree with Lady Justice Smith that his finding was perverse.

Had there been incidents of stone throwing prior to the date of the incident?

[17]It is not important to my conclusion on this appeal that there should have been previous incidents. I do however feel that the recorder’s approach to this aspect can be criticised. He seemed to think that the fact that there had not been previous reports of stone throwing, other than the one incident reported by Andrea Grace, supported a finding of fact that they had not occurred. But if one has regard to Josie Brewett’s statement about this very incident one can see that far the most likely explanation for there being no reports of incidents was that single supervisors were concentrating so hard on the earlier years that they simply did not see stone throwing taking place amongst years 9 and 10. Josie Brewett in her statement about this incident says this:- “I did not see the incident itself and the first knowledge that there was a problem was when a pupil starting shouting and others were escorting Scott from the end of the playing field towards me.”[18]Josie Brewett did not appreciate anything was going on until the appellant was being led from the field and that is despite the fact he had fallen down and cried out in agony.[19]Again it is unnecessary to come to any firm conclusions on this aspect having regard to the further points.

How long did the incident last?

[20]There was not ultimately a major issue between the appellant and respondent on the appeal because Mr Grice for the appellant had two strings to his bow as regards causation. First he pointed out how it was common ground between the witnesses who had been fellow pupils that they knew stone throwing was prohibited and that they would not have thrown stones if they had been aware there was a supervisor nearby. Thus he argued if there had been proper supervision no stone would have been thrown. He criticised the recorder for not dealing with this point. In the alternative he argued that the incident lasted longer than the recorder had found, and thus should have been spotted by a supervisor and stopped before the accident occurred.[21]I would accept Mr Grice’s first way of putting the case but it is fair to say that the recorder did not deal with this way of arguing the case almost certainly because it was not clearly articulated before him. Mr Hand very properly has not resisted the point being argued and indeed put in a respondent’s notice seeking to deal with the point.[22]Mr Hand, in his skeleton supporting his respondent’s notice, suggests(i) that the fact that the boys were not deterred by the presence of one supervisor shows they would not have been deterred by the presence of more than one. This fails to meet the point that in fact the one supervisor was actually concentrating on the years 7 and 8 and only glancing at years 9 and 10. Thus there was not in reality one supervisor.(ii) He criticises the appellant’s team for not calling Mathew Lamb, to give direct evidence as to whether he would have been deterred. There is no property in a witness and thus it lies ill in the mouth of the respondents to criticise the appellant for not calling Mathew Lamb when they could equally have done so.

Conclusion

[23]I have not spelt out all the submissions contained in the written skeletons and dealt with them seriatim. That is because as it seems to me the case falls into quite a short compass. First, to have one dinner lady supervisor who would be stretched to supervise over 150 pupils in years 7 and 8, only glancing occasionally at years 9 and 10, was in my view clearly negligent. Second, since the purpose of appropriate supervision is to deter children taking part in dangerous activities, as well as to stop dangerous activities if they do occur, a court should not be too ready to accept that the dangerous activity would have happened anyway. Third, where as here the recorder found witnesses called by the appellant were telling the truth, there was no reason not to accept their evidence that if a supervisor had been near they would not have thrown stones because they knew that stone throwing was prohibited.[24]I would allow the appeal and direct there should be an assessment of damages if they cannot be agreed.

Lord Justice Longmore:

[25]I agree.

Lord Justice Richards:

[26]I also agree.