Pook v Rossall School [2018] EWHC 522 (QB)

[2018] EWHC 522 (QB)Case No BC15/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY
Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate 16/03/2018
M60 9DJ
Before
MR JUSTICE MARTIN SPENCER
Between
Hannah PookAppellantRossall SchoolRespondent
Mr David Knifton and Mr Michael Whyatt (instructed by PHH Solicitors) for AppellantMr Michael Lemmy (instructed by DWF Solicitors) for RespondentHearing Hearing date: 20 February 2018
Judgment ApprovedMr Justice Martin Spencer :Introduction
[1]Pursuant to permission granted by Sir Alistair MacDuff on 14 December 2017, the Appellant (Claimant) appeals against the order of Her Honour Judge Beech dated 4 August 2017 whereby she dismissed the Appellant’s claim for damages arising from an accident that occurred on 14 January 2011. The Appellant was born on 25 October 2000 and was therefore aged ten at the date of the accident.

Circumstances of accident

[2]At the relevant time, the Appellant was a pupil at Rossall Girls’ School, in the Junior School. The Head teacher was Mrs Katherine Lee who had been appointed in 2010 and had previously been director of sport at the same school. At about 14:55 hours, there was a PE lesson for mixed year groups, the particular activity on that day being hockey on the Astroturf pitches. The session was to be taken by Mrs Lee, assisted by a post-graduate student, Ashley Lumbard.[3]Having got changed, the girls made their way towards the Astroturf which took them along a route shown marked on an aerial photograph attached to the statement of the Appellant’s father, Phillip, at p91 of the appeal bundle. It has at all times been the Appellant’s account that she and the other girls were not just permitted but were actively encouraged to run from the changing rooms to the hockey pitch. As the Appellant and her friend Katherine were in the top year, they would run ahead of the other girls getting to the pitch almost first. Mrs Lee brought up the rear, carrying some of the equipment needed. It is not wholly clear whether Miss Lumbard went ahead or followed the girls: in her witness statement (made on 22 November 2016, over five years later) she says that she cannot recall seeing the Appellant fall and cannot remember precisely where she was at the time that the Appellant fell.[4]According to the Appellant, as she and Katherine approached the hockey pitch, they started to race each other and the Appellant decided to cut the corner by running over a grassy and muddy area rather than staying on the tarmac. She states:
“As I approached the grassy area, I started to slow down as I went on to the grassy area I was still running. All of a sudden my feet slipped on the muddy grass verge, and I fell backwards with my right elbow hitting the kerb.”
This account of the accident is, however, in dispute.[5]The Appellant sustained a serious supracondylar fracture to her right elbow. After initial first aid from the school nurse, she was taken to Blackpool Victoria Hospital where she underwent open reduction and internal fixation of the fracture. A second operation for removal of the wires fixing the elbow was carried out some eight weeks later. She did not regain full movement of the elbow and a further operation for surgical release was carried out at Manchester Children’s Hospital on 11 September 2012 followed by an intensive course of physiotherapy and rehabilitation. A further manipulation and deep steroid injection under general anaesthetic was carried out on 6 November 2012. She has been left with some permanent restriction of range and movement in her right elbow and some scarring. Quantumhas been agreed in the sum of £45,000 net of interest.

The pleaded case

[6]In the Particulars of Claim, the pleaded case was that the Appellant was running with other pupils towards the Astroturf playing field and as she ran across the muddy area her feet slipped from under her and she fell backwards whereupon her right elbow struck the kerb. It was alleged that this was the fault of the school:(i) first in failing properly to supervise the PE lesson (the allegation being that the teacher allowed the pupils to run ahead unsupervised whilst she walked some distance behind carrying hockey equipment);(ii) secondly in failing to provide any or any adequate fence or barrier around the muddy area where the claimant fell;(iii) thirdly in failing to institute or enforce any or any adequate regime to ensure that pupils did not walk on the dangerous muddy area where an accident may happen. A further allegation in relation to the first aid treatment was not pursued and is irrelevant and there were “sweep-up”further allegations which did not add to the substance of the ones already referred to.[7]In the Defence, the Defendant specifically denied that the Claimant was running at the time that she fell. It was not admitted that she had passed over the grassy area and it was denied that she had slipped on the grassed area, it being alleged that she had tripped on the kerb separating the grassed area from the tarmac surface. The allegations of negligence were denied. It was pleaded that, with Miss Lumbard walking at or near the front of the class and with Mrs Lee at the rear, the PE lesson was being properly supervised. It was denied that there was a duty to fence off the grassed and muddy areas and it was denied that there was a duty to prevent pupils walking on the grassed area.

The trial and judgment

[8]The trial was heard over 26/27 July 2017 and it is understood that the witnesses called to give evidence were the Appellant, her parents, Mrs Lee and Ms Lumbard. There were statements from other witnesses in the trial bundle but those witnesses were not called to give evidence.[9]It is apparent from reading the transcripts of the evidence which are available and the transcripts of the closing submissions that the main factual issue which the Judge was asked to decide was whether the accident occurred because the Appellant slipped as she was running across the grassed (and muddy) area or whether the accident occurred because she tripped over the kerb. Although, as indicated in paragraph 7 above,there was an issue joined on the pleadings as to whether the Appellant was running at the time that her accident occurred, this issue appears to have been lost in the course of the trial.[10]At the conclusion of the evidence, the learned judge sensibly sought to establish with counsel what the position was in relation to how the claim was being put. Mr Whyatt, who represented the Claimant, was asked to state his position. At the forefront, he put the failure properly to supervise. He put it this way:
“I’m saying that the children should not have been effectively encouraged or permitted to run ahead of the staff in these circumstances when that muddy patch of ground had occurred at the end of their run there was a hazard for [the Appellant] so if it had been fenced off, maybe … it would have been safer for them to run to where they were going.”
He therefore alleged that there was a danger or trap. However Mr Whyatt framed his case in negligence rather than under the Occupiers’ Liability Act because he said that this was “primarily a case about how the children were controlled or not controlled by the teachers, rather than the danger on the school premises.”[11]As a result of the exchange between the learned

judge and Mr Whyatt, Mr Lemmy (at p221 of the transcript) stated:

“I think therefore this is a case of supervision and I believe from what my learned friend says the allegation under the [Occupiers’ Liability Act] in relation to the state of the premises is not being pursued.”
In the remainder of his submissions, Mr Lemmy then addressed primarily the issue of how the accident occurred and in particular whether it was a slip whereby the Appellant fell backwards or a trip whereby she fell forwards. Mr Lemmy’s basic submission was that the state of the evidence was such that the court was unable to determine how the accident and injury happened and should therefore dismiss the claim. At p224 of the transcript: he said this:
“If the court’s unable to determine how this all happened, that causes difficulty to the Claimant’s case. It probably fails there. It may not necessarily fail there, but I say it probably does. In my submission, it would be unsafe for you to say, well, she probably slipped because she was running, because we know that people slip all the time. This court is full of people who slip over walking, and it’s full of people who trip over when they’re walking and it’s full of cases of people who just fall over, unfortunately, for no apparent reason and then seek after the event to blame something …”
[12]My interpretation of this submission was that Mr Lemmy was inviting the Judge not to find that the Claimant probably slipped simply because she was running because there are other causes of slipping as well as running and other causes of tripping other than running. However, the premise of the submission appeared to accept that the Claimant was running. He went on to submit that the supervision was perfectly adequate: the pupil: teacher ratio was acceptable and it was “perfectly appropriate to allow them to move a small distance ahead, whether they were walking or running it makes no odds as I’ll come to running specifically.”[13]Mr Lemmy also referred to a “risk assessment” which, in relation to travelling to and from playing fields stated:
“Pupils walk on directed route. All equipment must be carried as instructed. Adhering to school guidelines and laws to ensure appropriate behaviour.”
In accordance with the evidence that Mrs Lee had given he submitted:
“What is that risk assessment really identifying travelling to and from the fields? Is it really identifying that running is dangerous as opposed to walking? In my submission, no it’s not. That would be ludicrous. There is nothing dangerous about running. It means they’ve got to take the directed route so the teacher knows where they are so they stay together in that general sense of using the same route together, because that would be troublesome if they could make their own separate ways there using whatever route they wanted.”
Again, the premise of those submissions would appear to be that the pupils were running rather than walking.[14]Furthermore, Mr Lemmy submitted:
“It is clear that Mrs Lee thought that there was nothing wrong about running to the start of the lesson. She was an experienced teacher, she was previously Head of Games. She is now Head of Junior School and if she thought there’s nothing wrong in running, whilst that isn’t determinativebecause that is an issue for you to decide, you ought to attach some weight to that because of her experience as a teacher and Head of Sports and Head of Junior School, it’s worthy of some weight and I ask you to give due weight. The point that I make at the end of the section on running is that, well, even if you’re critical of running, it’s not determinative of this case because you’ve got to be satisfied that the running was the cause of this accident and in my submission you can’t make that leap of faith. If you were wholly satisfied that she slipped on mud, then it might be easier to say running on a really slippery surface, more likely to fall than if you’re walking on a slippery surface, but I’m not so sure that the evidence is there before you to make that, but we don’t even get that far because you can’t be satisfied in my submission, that this was definitely a slip in the circumstances described. I say you can’t determine how she really fell. The best determination probably that she tripped and we know that people slip and trip anyway whether they’re running or walking, so I would say that even if you’re critical of running, then the causation aspect isn’t established.”
[15]The reason for setting out these passages from the submissions on behalf of the Defendant to the Judge below is to show that it was not part of the Defendant’s case to show that the Claimant was not running at the time she sustained her accident but rather to show that, even if she was, it is not dangerous per se to run and the evidence did not establish that it was the running (as opposed to walking) which was the cause of the accident. Whilst it may not have been formally conceded on behalf of the Defendant that the Claimant was running at the time she sustained her accident, nor was it argued very strongly (if at all) that she was not.[16]On behalf of the Claimant Mr Whyatt submitted to HHJ Beech that the case was all about “that the children were allowed to run and that that was a breach of duty on the part of the school, on the staff of the school in the circumstances.” Mr Whyatt then proceeded to address the issue of causation and in particular whether the evidence tended to establish that the Claimant had slipped (backwards) or tripped (forwards).[17]Then, at p236 of the transcript, Mr Whyatt returned to what he called liability (breach of duty), submitting that “the beginning and end of this case is the allegation in paragraph 1 being that the Claimant’s teacher allowed the pupils to run ahead unsupervised whilst she walked some distance behind”. He asked the court to find that the Claimant was running not walking and he referred to Mrs Lee’s evidence where she had said not just that she encouraged the girls not to dawdle but that she would hurry them along and that they were running:
“it was normal to run”
. Mrs Lee’s position was that there was nothing wrong with the girls running. He then submitted:
“The reason this accident happened is because running, in that context, in that place, caused a foreseeable risk of injury to [the Claimant]. Now, it might not be foreseen exactly what would have happened to [the Claimant]. She could have got run over, she could have got attacked by dog. She could have slipped and banged her elbow on a kerb. The point is it wasn’t safe and that kerb was not, and that piece of muddy ground, was not a safe place to end what was effectively a race between children.”
He submitted that, contrary to Mrs Lee’s evidence, it was not alright for the children to run and that Mrs Lee had failed to “give any thought or consideration as to what would happen when they got to the other end. You don’t have kerbs and muddy grass areas on football pitches or hockey pitches or on running tracks because if you did, people would be injuring them all the time and this was a ten year old child who was trying to slow down on a muddy patch of ground.”

The Judgment

[18]Having dealt with the Claimant’s case, the learned judge discussed the mechanism of the Claimant’s fall and found as a fact, on the evidence, that the Claimant had fallen forwards, landing on her right elbow rather than having slipped backwards. Her basis for so finding was, firstly, Mrs Lee’s accident report form where she had recorded (on the basis of what she was told) that the Claimant “tripped and fell on the kerbstone outside the Astroturf gate” and, secondly, the hospital records where it is recorded:
“Patient fell while running in school. Fell forwards. Landed on her right elbow”
The Judge found that the Claimant would have given a truthful account of how she came to suffer her injuries when asked by the hospital staff and that “the account she gave of falling forwards and tripping is consistent with the record made by Mrs Lee and on the balance of probabilities is the correct one.” However, the learned judge did not make any clear finding as to whether or not the Claimant was running at the time that she fell. However, it seems to me that she did not need to do so: the learned judge was not purporting to “cherry pick” the account given by the Claimant to the triage nurse but found as a fact that the account given at that stage was true and accurate. Not only did that include the account that she had fallen forwards but also the Claimant’s account that she was running and if the Judge had been intending to accept one part and not the other, she would have said so in terms. It follows that, for the purposes of this appeal, I should (and do) assume that the Claimant was running at the time that she fell and furthermore, that she fell forwards, tripping, and did not fall backwards, slipping.[19]In his submissions on behalf of the Claimant before me, Mr Knifton for the Claimant, stated that it was not in dispute that the Claimant was running when she fell. Although, on behalf of the Defendant, Mr Lemmy stated that this was in dispute (hence my recitation of his submissions above which might be taken to have been tantamount to a concession that the Claimant was running), for my purposes it does not matter because the learned judge either found that the Claimant was running or, if she did not do so, she should have done.[20]Under the heading “Supervision and running”, the learned

judge went on to say:

“If I am wrong in my primary determination in relation to how Hannah came to suffer her injury, I will now deal with the allegations of negligence.”
It seems to me that this implies that, following Mr Whyatt’s submissions, the learned judge considered the issues as to whether the Claimant had slipped backwards or tripped forwards to be determinative of causation. The final sentence at paragraph 13 of the Judgment needs to be read in that context. There the Judge said:
“In all of the circumstances, the Claimant has not satisfied me on the balance of probabilities that she suffered injury as a result of falling backwards having slipped on the muddy verge whilst running and her claim accordingly fails.”
It was submitted by Mr Lemmy that I should interpret this as a finding by the learned judge that the Claimant was not running, but in my judgement that is simply not right. When put into the context of the judgment as a whole and the fact that the Judge, at that stage, was considering causation, I have no doubt that the Judge was intending to say that the Claimant had failed to persuade her that she had suffered her injury as a result of falling backwards rather than as a result of tripping forwards and that it formed no part of the judge’s determination at that stage, in relation to causation, to find that the Claimant was not running. On the contrary, it seems to be that the premise of the Judge’s finding, as had been the premise of Mr Lemmy’s submissions to her, was that the Claimant was running at the time of her accident.[21]Consistently with the submissions of Mr Whyatt, the learned judge then considered the issue of “supervision and running” in terms of whether the Defendant had been negligent (i.e. in breach of duty) in allowing the Claimant to run. Finding in favour of the Defendant, the learned judge found that for Mrs Lee to have instructed the class to run to the pitch was not negligent. She said:
“I am satisfied in that context of the accident taking place within the school estate where vehicle access was limited, it was perfectly proper for Mrs Lee to tell the girls ‘not to dawdle’ as she put it or to run, as Hannah put it. I see little difference between running and racing. The girls had an adequate number of staff supervising them but it is obvious if girls are permitted to run they will move faster than the teachers who are carrying the kit and put distance between them. Running to a lesson is no different, in my view, to participating in a cross-country race.”
She found that the risk assessment was of no assistance to the Claimant. She further found that the grass verge was not itself unsafe or inherently dangerous and, in any event, the girls were not permitted to step onto the grass – not because of any danger it posed but because of the risk of mud transfer onto the pitch. Mr Whyatt submitted that “accidents such as that suffered by Hannah simply should not happen in a school environment and that Hannah should have been sufficiently supervised to ensure that she followed instructions” but the learned judge disagreed, rejecting any kind of “res ipsa loquitur” argument arising from the fact that the accident happened. The learned judge stated that accidents do happen and it does not follow it must be someone else’s fault.

The submissions on this appeal

[22]Mr Knifton, who appeared with Mr Whyatt for the Claimant on the appeal, submitted that, in considering the appeal, the court should bear in mind three matters that were not in dispute:(i) The Claimant was running when she fell;(ii) the Claimant was out of sight of the teaching staff when she fell;(iii) Mrs Lee told or allowed the pupils to run. With those matters in mind, he submitted that regardless of the mechanism of the fall, if the Claimant was running, the learned judge should have concluded that the risk of injury was thereby increased and the task of the court was therefore to examine whether the increased risk was or was not justified. If it was not, and the pupils should therefore have been instructed to walk rather than run, the Defendant was in breach of duty. He submitted that the only reason proffered for allowing the pupils to run was that there was limited time for the hockey lesson. However, he referred to Mrs Lee’s evidence where she said it would take 3-4 minutes to walk there and, in any event, the hockey lesson could not start until she got there and as she was walking at the back she was effectively the “lowest common denominator” and was the determinator as to when the lesson started.[23]Mr Knifton further submitted that the route from the changing room to the hockey pitch, going through a car park and over a road (albeit internal within the school estate) meant there was an additional risk to pupils in running and in addition it was foreseeable that pupils might race each other which would further increase the risk. He submitted that the learned judge had been wrong in asserting that running to the hockey pitches was no different to participating in a cross-country race. He said that, in the end, it all about risk versus benefit. The benefit of participating in a cross-country race in particular, and sport in general, outweighs the additional risk which arises from running. By contrast, the risk of running in corridors within a school where pupils go in opposite directions and where doors swing in and out and where people are carrying things means that the risk of running far outweighs any benefit, which is why running is almost always prohibited. Whilst acknowledging getting from the changing rooms to the hockey pitches falls somewhere in between the two extremes of running whilst participating in sport and running within school corridors, he submitted that the principle is the same: does the benefit (if any) outweigh the risk? He submitted that, in the absence of any proper justification for running, the pupils should have been instructed to walk.[24]In relation to causation, Mr Knifton submitted that for the Claimant to have walked rather than run would have made all the difference. First, the evidence was that she was an excellent pupil whose behaviour was always exemplary and who would have done as she was told. If therefore she had been instructed to walk, she would have done so. In relation to the mechanism of injury, he submitted that there had been no sufficient evidence upon which the Judge could rely to displace the evidence from the Claimant herself that she had slipped backwards whilst running but, in any event, the precise mechanism didn’t matter if the court should have come to the conclusion that the accident was associated with running and the Claimant should not have been running at all.[25]In relation to the legal background, he directed me to the decision of the Supreme Court in Woodland v Swimming Teachers Association [2014] AC537 where it was held that a school is not to be regarded as “in loco parentis”. The position of parents is very different from that of the school which provides a service either by contract or pursuant to a statutory obligation. A school owes its pupils at least the duty of care which reasonable parents owe to their children but it may owe more than that. Giving the Judgment of the court, Lord Sumption said (at paragraph 23):
“(1) The Claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the Defendant against the risk of injury. (2) There is an antecedent relationship between the Claimant and the Defendant, independent of the negligent act or the omission itself, i) which places the Claimant in the actual custody, charge or care of the Defendant and ii) from which it is possible to impute to the Defendant the assumption of a positive duty to protect the Claimant from harm, and not just a duty to refrain from conduct which will forseeably damage the Claimant. It is characteristic of such relationships that they involve an element of control over the Claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren. (3) The Claimant has no control over how the Defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.”
Although the Woodland case was concerned with, among other things, the issue of non-delegable duties, in that context the Supreme Court took the opportunity to observe that, whilst schools are employed to educate children, they can only do so if they are allowed authority over them and that authority confers on them a significant degree of control. Thus the recognition of a non-delegable duty of care owed by schools involves imputing to them a greater responsibility than any which the law presently recognises as being owed by parents.[26]Mr Knifton further directed my attention to the decision of the Northern Ireland High Court in Murray v McCullough [2016] NIQB52. In that case, Stephens J also found unhelpful any analogy between the duty owed by a school and the duty owed by a parent. He said:
“However for my own part I would prefer that the standard of the duty of a school teacher should not be expressed as taking such care of his pupils as would a reasonably careful parent of the children of the family but rather taking reasonable care in all the circumstances. The yardstick is reasonable care; it is not some notional standard as to what a reasonably careful and prudent parent of the family would or would not do in relation to his own children. The relevant circumstances which are to be taken into account in an individual case in determining whether reasonable care has been taken by a school teacher will depend on the evidence in that case. Highly significant circumstances will be the age and maturity of the child or young person. … in addition to those circumstances which are particularly relevant in claims by children or young persons are other circumstances of general application such as the magnitude of the risk, the likelihood of injury, the gravity of the consequences and the cost and practicability of reducing or avoiding the risk.”
[27]For the Defendant, Mr Lemmy submitted, first, that the Judge’s finding had been that she was not satisfied that the Claimant sustained her injury whilst running. However, for the reasons set out above I reject that submission. Perhaps more pertinently, Mr Lemmy submitted that there is a spectrum of occasions when children can properly be allowed to run, for example during break time, when playing football in the playground and generally children are allowed to run around both at home and at school. He submitted that everything depends upon the circumstances and that the teachers must exercise a judgment. Even where an accident has occurred, it doesn’t necessarily mean that the judgment exercised by the teacher was wrong, as accidents can happen in any event.[28]He submitted that Mrs Lee had formed a view that it was appropriate to allow the children to run to the hockey session, and that as Head Teacher, former Head of Sport and the person who had been responsible for putting together the risk assessment, and also as a person who had impressed the Judge when giving evidence, Mrs Lee’s judgement was to be respected and paid due regard.[29]Mr Lemmy also submitted that it is part of the philosophy of education to allow children to develop, which includes giving them a measure of independence particularly as they grow older, and allowing children to run ahead can be thought to be part of that philosophy. He rejected the suggestion that the correct test is the reduction of risk to the lowest reasonably practicable and submitted that the test was simply one of reasonable care. In this regard he asked the court to consider the following circumstances.• This was a controlled environment• the school estate was well managed• as a child in year 6 (that is the final year of junior school), the Claimant would have taken this route many previous times and was familiar with it• the girls were warned to be aware. He submitted that there were no particular risks that required them to walk rather than to run. In fact, the children were told not to go on to the muddy verge, not for safety reasons but to stop bringing mud on to the Astroturf of the hockey pitch. Finally, he pointed to the fact that the evidence showed the children were well behaved. He submitted that all of the above factors are included in the judgment below and were therefore properly taken into account by the learned judge.[30]In relation to the issue of supervision, Mr Lemmy submitted that the teachers were not far away and it was reasonable to allow the children to be out of sight for a very short period of time. The teachers were never far away and the ratio of teachers to children was good. He also relied upon Mrs Lee’s experience. He said that whilst there might be a range of reasonable views and that some teachers might have instructed the children to walk, it was reasonable in all the circumstances for Mrs Lee to allow them to run.[31]In addition, Mr Lemmy submitted that the court should not necessarily accept that the risk was generally any lower if the children had been instructed to walk rather than to run. He submitted that, if people are running, they tend to be more careful to look where they are going and to concentrate more. If walking, they might be talking or looking around or not concentrating so hard on what they are doing, thereby running the risk of tripping or slipping in any event. He asked the court to reject the assumption which lay behind the submissions on behalf of the Claimant that running is inherently less safe than walking. In any event, he submitted that there were good, positive reasons to allow the children to run to the hockey lesson: first, it would mean that they were all there when Mrs Lee arrived so that she could get straight on with the lesson and not have to waste time sorting out dawdlers; furthermore, the children would be to a certain extent warmed up and ready to start the hockey lesson, a proper warm up being part of any sport.

Discussion

[32]In my judgment, Mr Knifton is correct to remind the court of the enhanced duty which institutions such as schools and hospitals owe to those in their care who are vulnerable whether because they are patients and ill, or because they are children and young. Furthermore, the duty goes beyond that of a parent at home with responsibility for the care of his or her family. There are enhanced duties arising from the fact that the ratio of carer to vulnerable person will be greater (a teacher might have responsibility for a class of 30 pupils) and there are duties arising from the different environment of a school or hospital, the equipment that is used and the fact that, in schools particularly, the children are interacting with other children who might act unpredictably and, sometimes, dangerously.[33]However, I reject the notion that the duty of a school is to reduce the risk to the lowest level reasonably practicable. I agree with Mr Lemmy that whilst there are some risks which no reasonable school or teacher would allow a pupil to run (running in corridors between classes for example), and other risks which it will almost always be reasonable to allow a pupil to run (for example the risk arising from contact and other sports), there will be situations in between which allow for a measure of discretion and judgment on the part of the teachers. In those circumstances, the court should be slow to condemn a teacher as negligent and to substitute its own judgment for that of the teacher where the teacher can be expected to have knowledge of the school, the environment, the particular children in her charge and her experience (which, in the case of Mrs Lee, was considerable). Even in the knowledge that the Claimant had been injured, this being the daughter of a close friend (the Claimant’s mother was a nurse employed by the school and a close friend of Mrs Lee), Mrs Lee nevertheless did not accept that she had been at fault. I have no doubt that, had she recognised fault on her part, Mrs Lee would have said so and in the context of a witness who was regarded by the Judge as impressive and truthful, the Judge was entitled to have regard to the fact that Mrs Lee did not recognise any fault on her part.[34]In considering breach of duty, the learned judge came to the conclusion that there had been no negligence on the part of Mrs Lee in allowing the children to run from the changing rooms to the hockey pitch. In my judgment, not only was there ample material on which the Judge could come to that conclusion but I would go further and say that the Judge was right so to conclude. I agree with Mr Lemmy that the circumstances to which he alluded and which are set out in paragraph 29above are relevant circumstances and ones which Mrs Lee would reasonably have taken into account in deciding whether it was reasonable to allow the girls to run to the hockey lesson. I would be surprised if it is not the case that, in schools up and down the country, children are allowed to run to sports lessons unless, perhaps, the route takes them over busy roads or through an environment which is inherently dangerous. However, generally, it is not inherently dangerous for children to run as long as they are careful and to stop them from doing so when on their way to a sports session would be extremely difficult. Mrs Lee demonstrated herself to be a caring and thoughtful teacher who had been responsible for an impressive risk assessment which showed that she was well aware of her duty of care towards the children in her care and took that duty very seriously. All this was more than sufficient to entitle the Judge to come to the conclusion there was no breach of duty in this case and that is not a conclusion with which I could possibly interfere. In all the circumstances, it seems to me to have been the right conclusion.[35]In relation to causation, the learned judge was entitled to find that the mechanism of injury was that the Claimant had tripped and fallen forwards whilst running. Although the evidence was conflicting, there was sufficient evidence arising from contemporaneous sources to support that finding. Thus, this was what the Claimant had told the triage nurse and Dr Raq at the hospital and it was also the information from other pupils which Mrs Lee had gleaned in order to write her accident report form.[36]As it had been the Claimant’s case at trial that she had injured herself because she had slipped and fallen backwards whilst running, the Judge’s finding had involved a rejection of the Claimant’s case as put at trial. However, it did not necessarily follow that the case on causation failed. It seems that the learned judge may not have considered the alternative case in that she assumed that if she rejected the case as put on behalf of the Claimant, then she should find in favour of the Defendant. Nevertheless, the difficulty faced by the Judge was that, in rejecting the Claimant’s case, it was then difficult for her to find that the Claimant had nevertheless proved that the accident was causally related to the fact that she was running. This was compounded by the fact that the case was not so clearly put that way before the learned judge as it has been before me by Mr Knifton. In my judgment the Judge had sufficient evidence to conclude that, if the accident occurred because the Claimant tripped and fell forwards, that is something which could well have occurred in any event whether she had been running or walking and therefore the Claimant had failed to prove causation. On this basis, too, I would reject the Appeal.

Conclusion

[37]In conclusion, whilst having every sympathy for the Claimant and the nasty injury to her elbow which she sustained, in my judgment her claim and this appeal must fail for the reasons which I have stated.

Cited in 1 later judgment