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Carmarthenshire County Council Vs. Lewis - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case NumberNo.
Judge
AppellantCarmarthenshire County Council
RespondentLewis
Excerpt:
lord oaksey my lords, this is an appeal from the court of appeal affirming a judgment of mr. justice devlin in favour of the plaintiff, who is the widow of a lorry driver who lost his life, when driving a lorry, in an attempt to avoid a little boy named david morgan (hereinafter called " david ") aged about three and three-quarter years, in college street, ammanford. david was a pupil at the nursery school conducted by the appellants who are the local education authority responsible for the provision and maintenance of schools in the countyof carmarthen. this school included a nursery school, an infants' school and a junior school, the premises of which abut on college street, ammanford, and are delineated on the plan put in evidence, from which it appears that the building marked school.....
Judgment:

Lord Oaksey

MY LORDS,

This is an appeal from the Court of Appeal affirming a judgment of Mr. Justice Devlin in favour of the Plaintiff, who is the widow of a lorry driver who lost his life, when driving a lorry, in an attempt to avoid a little boy named David Morgan (hereinafter called " David ") aged about three and three-quarter years, in College Street, Ammanford. David was a pupil at the nursery school conducted by the Appellants who are the Local Education Authority responsible for the provision and maintenance of schools in the countyof Carmarthen. This school included a nursery school, an infants' school and a junior school, the premises of which abut on College Street, Ammanford, and are delineated on the plan put in evidence, from which it appears that the building marked School Ages 7-11 was the junior school and the building marked Nursery School included both the infants' school and the nursery school, the infants' school occupying the eastern part of the building marked Ages 5-7 and the nursery school the western part marked "Ages 3-5". The play-pen was used only by the nursery school and the yard to the south of the nurse11pt"> Onry school was used only by the infants' school. This yard had access through a gate leading into a lane which led to College Street, and the yard to the south of the junior school had a gate which led directly into College Street.

On the 19th April, 1951, at about 12.15 p.m. after the midday meal, the mistress in charge of the nursery school, Miss Morgan, was about to take David and a little girl, both of whom had been at the nursery school for a year, out for a walk as a treat which she gave daily to two of the children in the nursery school. She left David and the little girl, who had got their hats and coats ready to go out, in the class room in which two girls of about nine years old from the junior school were laying out mattresses, whilst she went to the lavatory. As she came back she met a child coming from the play-pen who had fallen down and cut himself. She washed and bandaged him and then was taking him to the head mistress of the school to see if he should be taken to the doctor, as she did not know whether the cut he had was serious, when she met David in the head mistress's office, and it appeared that he had been brought there from College Street, where the accident to the Plaintiff's husband had taken place. Miss Morgan had been away about ten minutes.

In these circumstances, Mr. Justice Devlin and the Court of Appeal have held that Miss Morgan was negligent in leaving David and that her negligence caused the accident to the Plaintiff's husband.

I should agree that, if Miss Morgan was negligent, her negligence was causally connected with the accident. If a child of under four years, who is in the charge of a schoolmistress, is negligently allowed by the schoolmistress to stray into a crowded street, I am of opinion that the negligence is causally connected with an accident caused by the child. But I do not think Miss Morgan's conduct was negligent.

The standard of care which the law demands is the standard which an ordinarily prudent man or woman would observe in all the circumstances of the case.

Mr. Justice Devlin appears, in my opinion, to have disregarded what Miss Morgan said as to her reasons for not returning immediately to the two children. He said: If the case had been that the child was hurt sufficiently badly to give rise to a degree of alarm that drove from MissMorgan's mind the other calls upon her, or to put her into the position of having to choose between two duties, both of which she could not adequately perform, I should have felt gravely handicapped by lack of material.

But I think it emerged quite clearly from Miss Morgan's evidence that the defence was not that.

But in my opinion that was exactly what the defence was. Miss Morgan said she bandaged the child who was hurt and took him to the head mistress to see if he should be taken to the doctor as she did not know whether the cut he had was very serious. The head mistress was called by the Defendants, but was asked no question by the Judge or the Plaintiff's Counsel on this matter. Doubtless Miss Morgan might have taken other steps: she might have told David that she would only be a few minutes, or have asked the mistress in the play-pen to keep an eye on him, but she knew David to be an obedient child who had been under her care for a year and she knew that he and the little girl were waiting, dressed up to go out with her for a treat. The learned Judge said that they were "dressed up with nowhere to go ..." But they were going out with Miss Morgan, and I should have thought that that was exactly what would have made them wait for the mistress who had promised to take them out for a treat.

In such circumstances it appears to me perfectly natural that Miss Morgan would never have thought that the children would wander out of the school into the yard, much less go out through the gate into the lane. As she said, they were trained children who had been in the school for over a year. Mr. Justice Devlin appears to have formed a somewhat unfavourable opinion of Miss Morgan because of her evidence about the gates out of the yards, which was as follows: —

“Q. Can children aged 5 to 7 operate the latch of the gate into the lane? A. Yes.

Q. There is a latch to the gate into the lane, is there? A. Yes.

Q. Is there a latch to the gate into the highway, or is it the fact you can open it just by pulling it? A. By just pulling it.

Q. And it is a fact, is it, that you can get from the infants' yard to the main school yard? A. Yes. my Lord.

Q. Are those gates ever kept locked during the play hours when the 5 to 7's are out? A. Yes.

Q. They are? A. Yes, they are locked. Q. Always? A. No, not always.

Q. When are they kept locked and when are they not? A. The head mistress has charge of them.

Q. That is why I thought perhaps you might not know about it. You know that they are sometimes locked, do you? A. Yes.

Q. Generally locked, would you say? A. Yes.

Q. From your observation, they are generally but not always. But you cannot say, because you were not in charge of it, on what system they are kept locked or unlocked? A. No, my Lord.

Q. One or other of them must, of course, have been unlocked on this occasion? A. Yes.

Q. And you cannot say which? A. No.

MR. GERWYN THOMAS: Was the witness referring to both gates when she said they might be locked. Was she referring to the main gate and the lane gate or not, when she said they were locked during playtime? A. The lane gate.

Q. Not the other? A. No.

MR. JUSTICE DEVLIN: What about the main gate then? A. No.

Q. Is it never locked? A. No."

Subsequently the head mistress was called by the Defendants to correct Miss Morgan's evidence, and said that the lane gate was closed but never locked.

Both the Courts below have based their judgments on the negligence of Miss Morgan, but some of your Lordships are of opinion that though Miss Morgan was not negligent yet the Appellants were negligent for allowing the gate into the lane to be left unlocked.

It is true to say that in particulars delivered on 20th October, 1952, it was alleged that " one of the mistresses . . . failed to see that the gates leading from the school premises to the highway were closed. But the case was not fought on this issue. In fact the gates were closed but not locked. No question was asked of the head mistress as to why the gates were not locked. None of the Judges who have heard the case have based their judgments on an obligation on the Respondents to keep the gates locked and the matter is not relied upon in any of the Reasons to the Respondent's printed Case.

I think, therefore, that the case ought to stand or fall upon the issue of Miss Morgan's conduct, and, in my opinion, it cannot be decided in favour of the Respondent without inferentially holding that education authorities are bound to keep children under constant supervision throughout every moment of their attendance at school, which, in my opinion, is to demand a higher standard of care than the ordinary prudent schoolmaster or mistress observes.

An analogy between the law as to the liability of owners of animals on highways was discussed in your Lordships' House; but although there are certain similarities between children of tender years and animals, I think the law as to straying animals is based upon the way in which animals have been kept from time immemorial and the impossibility of keeping them under control in all circumstances, and that there is no true analogy.

For these reasons I would allow the appeal.

Lord Goddard

MY LORDS,

I need not reiterate the facts of this somewhat, difficult case. The question of general importance that is raised is whether there is a duty on the occupiers of premises adjoining a highway to prevent young children from escaping on to the highway so as to endanger other persons lawfully passing upon it. By young children I mean those of such tender years that they may be presumed to be unable to take any care for their own safety and whom a prudent parent would not allow to go into a street unaccompanied. A long series of cases culminating in Searle v. Wallbank [1947] A.C. 341 have established, now beyond controversy, that an occupier is under no duty to fence his fields, yards or other premises so as to prevent his cattle or other domestic animals from escaping on to the highway, though by so doing danger, and it may be disaster, is caused to passers by. If, then, an occupier is not liable for the escape of an animal, is he to be held liable for that of an infant, who from the standpoint of reasoning powers is much the same as a sheep or any other domestic animal? Now, once a doctrine has become a rule of law it is the duty of the Courts to apply and follow it without regard to its origin, but if to follow it would be to extend it, in my opinion it is not only legitimate but essential to examine the origin and reason for it if it be known. How some rules of law arose is not always known. For instance, except for the fact that in 1790 Lord Kenyon laid it down categorically in Merryweather v. Nixan 1 S.L.C. 449 that there was no contribution between joint tort feasors no one has ever discovered whence the rule came, but it remained the law till abrogated by the Law Reform Act, 1936. But how the rule your Lordships have to consider arose is, I think, known, its origin having been explained particularly by Viscount Maugham L.C. in Searle v. Wallbank (supra) and in Heath's Garage Ltd. v. Hodges [1916] 2 K.B. 370 in the judgment of Neville J. It arose because at least most of the roads in this country originated over unenclosed country when the open field system of farming prevailed and long before fencing became usual, and to this day hundreds of miles of roads run through unenclosed land, so cattle, sheep and all domestic animals could and still do wander onand over such roads, and the presence of domestic animals was not regarded, to use the words of Neville J., as inconsistent with the reasonable safety of the public using the road. Whether this doctrine should prevail in these days of swift moving motor traffic, at least in the case of roads in enclosed country, is for the legislature to consider, but it has never been applied to the presence on the roads of human beings of whatever age, nor to an inanimate object. Perhaps the simplest way of accounting for the rule is that dedication of roads at least in country districts must be presumed to have been sub modo, subject that is to the possible presence of domestic animals upon them. How far the doctrine applies in towns or populous places may. I think, still be considered a debatable question. Having regard then to its origin, it would, in my opinion, be unwarrantable to extend it to the facts of the present case.

The position then is that the Defendants maintain a nursery and infant school in premises adjoining a highway in a town and are, in my opinion, under a duty to take care that the children themselves neither become involved in nor cause a traffic accident. At the trial the principal matter relied on as establishing negligence was that this child and one other were left unattended by the teacher in charge for a short time during which they got out of the school grounds. The learned trial Judge thought it a border-line case, as did Somervell L.J. but on the whole found the teacher was negligent. This is an inference drawn from the facts found by the learned Judge and. in my opinion, is open to review by your Lordships, who, accepting the facts so found, are in as good a position as the Courts below to determine whether they justify holding Miss Morgan guilty of a want of care. Reluctant as I must be and am to differ on such a matter, I cannot hold that an inference of negligence on her part should be sustained. Her duty was that of a careful parent. I cannot think that it could be considered negligent in a mother to leave a child dressed ready to go out with her for a few moments and then, if she found another of her children hurt and in need of immediate attention, she could be blamed for giving it, without thinking that the child who was waiting to go out with her might wander off into the street. It is very easy to be wise after the event and argue that she might have done this or that; but it seems to me that she acted just as one would expect her to do, that is to attend to the injured child first, never thinking that the one waiting for her would go off on his own. The utmost length of time she was out of the room was 10 minutes, but it is plain that the child must have gone off very soon and I should think almost immediately after Miss Morgan had gone to the lavatory. He had to go from the room, across the playground, out into the side lane, down to the main road and then some way along the latter, cause the accident and be brought back to the place from which he started, there to be seen by Miss Morgan all within this short space of time. And this was a child described as obedient and who had never before left the school by himself as he was always fetched by his mother. I cannot bring myself to lay the blame for this tragic accident on Miss Morgan. But this does not conclude the matter as far as the Defendants are concerned. They maintain a nursery school and an infant school on these premises. In the former they accept the care of children from 3 to 5 years and in the latter those of 5 to 7. During the time when this child was in their care he is found outside the school premises wandering in the street. That, in my opinion, clearly calls for an explanation from the Defendants. They have only shown that the child left the room in the temporary absence of the teacher and so got into the playground.

In the playground he would have been safe at least from traffic risks. AH we know is that the gates must have been open or so easy to open that a child of 3 or 4 could open them. True the nursery children are put when out of school into the playpen but infants from 5 to 7 play in the play-ground. If it is possible for children of that age, when a teacher's back may be turned for a moment, to get out into a busy street this does seem to indicate some lack of care or of precautions which might reasonably be required. There is no analogy between a school playground and the home in this respect. At any rate no satisfactory explanation has been given for this child being found in the street at a time when he was in the care of the Defendants, and for this reason T would dismiss the appeal.

Lord Reid

MY LORDS,

It is admitted that the Respondent's husband lost his life through no fault of his own. He was driving a lorry along a busy street when a child of four ran on to the road. He must have swerved to avoid the child and, in doing so, his lorry struck a lamp post at the edge of the pavement and he was killed. There is no direct evidence about the matter, but there is no suggestion that he did not take the right course in trying to save the child or that he could have avoided the accident. Just how the accident happened is immaterial. It is not disputed that the cause of his death was the action of the child. Of course, the child was not old enough to be responsible, and if a child of four is alone in a busy street it is quite likely to do what this child did. This action is brought by the driver's widow, who is the Respondent, against the Appellants, in whose charge this child was when it got on to the street.

The Appellants are the Local Education Authority. Adjoining this street they have a school in which there are three departments, a junior school, an infants' school for children between five and seven and a nursery school for children under five. Nearest the street there is a playground for the juniors, behind that is the junior school building, behind that again is a playground for the infant school and furthest from the street is the building in which the infant school and the nursery school are conducted. There is an enclosed play-pen adjoining the nursery school for the children under five. There are Only two entrances to the school, a gate from the street for the juniors and a gate from the infants' playground for the others. This gate gives access to a small lane which runs from the street along the side of the school.

The child in question, a boy named David Morgan, had been attending the nursery school for about a year before the accident. He was brought to school every morning by his mother and taken home by her in the afternoon. At about 12.15 each day the children in the nursery school go into the play pen where they are watched by one of the mistresses. The nursery school was under the charge of Miss Morgan (who is not related to the child David) and at this time she often took two of the children for a short walk into the town. On the day in question she was going to take out David Morgan and a girl, Shinoa Evans, and they got their hats and coats. Then Miss Morgan went out of the classroom to get ready to go out, intending to be away for a very short time. But she then found that one of the other children had fallen and cut himself, and she stopped to wash and bandage the cut. This took about ten minutes. Then Miss Morgan thought she ought to take this child to the Head Mistress to see whether a doctor should be called. The Head Mistress's room was on the other side of the nursery classroom, and when she entered the nursery classroom she found that the other two children had gone.

During this period of ten minutes or so the two children, David and Shinoa, must have got out of the classroom. We do not know where Shinoa went, but David must have crossed the infants' playground, gone through the gate into the lane, and gone down the lane and about a hundred yards along the street to the place where the accident happened. After the accident he must have been brought back by someone, because Miss Morgan found him outside the classroom in a small vestibule which is open to the infants' playground.

When Miss Morgan left the children in the classroom the door of the room was shut and there were two girls of about nine from the junior school in the room. After their time in the play pen the nursery children come in to the classroom and sleep for a time on some kind of beds on the classroom floor, and these two girls of nine were laying out these beds when Miss Morgan left to get ready to go out. They were not there when she came back, and we do not know when they left, nor do we know how long Miss Morgan expected them to stay. As she only expected to be away for a very short time she naturally gave them no instructions about looking after the small children, David and Shinoa.

It appears that the classroom door could be opened by children of four. We know little about the gate from the playground into the lane, but we do know that David got through it. There was no one in the infants' playground at that time, but the juniors were playing in the front playground, and it seems clear that David must have gone out by the gate into the lane.

In these circumstances two questions arise for decision. In the first place, was the escape of the child David into the street attributable to negligence of the Appellants or of those for whom they are responsible? If it was, then it appears to me to be obvious that his being there alone might easily lead to an accident, and if the child had been killed or injured the Appellants would have been liable in damages, for they certainly owed a duty to the child to protect him from injury. But then a second question is raised by the Appellants. They say that, although they owed a duty to the child, they owed no duty to other users of the highway, and that even if they were negligent in letting the child escape on to the street they cannot be held responsible for damage to others caused by the action of the child when there.

On the first question I am of opinion that the Appellants were negligent. However careful the mistresses might be, minor emergencies and distractions were almost certain to occur from time to time so that some child or children would be left alone without supervision for an appreciable time. The actions of a child of this age are unpredictable, and I think that it ought to have been anticipated by the Appellants or their responsible officers that in such a case a child might well try to get out on to the street and that if it did a traffic accident was far from improbable. And it would have been very easy to prevent this, and either to lock the gates or, if that was thought undesirable, to make them sufficiently difficult to open to ensure that they could not be opened by a child so young that it could not be trusted alone on the street. The classroom door was not an obstacle, and no doubt it was convenient that the children should be able to open this door themselves, but that meant that the way to the street was open unless the outer gate was so fastened or constructed as to be an obstacle to them.

There was much argument whether Miss Morgan was negligent in leaving these children for ten minutes. I do not think that she was negligent in the first instance because she intended to come back very soon: the real question is whether, when she found that she had to be absent to attend to the injured child, she ought to have paid some attention to the two who were waiting for her. She was next door to the classroom while attending to the injured child and, without delaying her attention to the injured child, she could have called to David and Shinoa to come in to the play pen where they would have been under supervision, or at least she could have opened the door of the classroom to see that all was well. But no doubt her whole attention was concentrated on the injured child, and the question whether her omission to give any attention to the other children amounted to negligence is, I think, a very narrow one. I prefer to base my judgment on the fact that such a situation ought to have been anticipated by the Appellants and provided for.

The Appellants argued that even if they were negligent and even if they owed some duty to the deceased lorry driver the accident which caused his death was not reasonably foreseeable; his death, if it was a consequence of their negligence, was too remote to involve them in liability for it. I would deal with that argument in this way. Was it foreseeable by an ordinary reasonable and careful person that a child might sometimes be left alone in the nursery school for a short period? I think it was. I see nothing very extraordinary in the circumstances which caused these children to be left alone. Was it then foreseeable that such a child might not sit still but might move out of the classroom? If I am right in my view that it is not safe to make assumptions about the behaviour of such young children again I think it was. Was it then foreseeable that such a child might go into the street, there being no obstacle in its way? I see no ground for assuming that such a child would stay in an empty playground when the gate was not more than twenty yards or so from the classroom. And once the child was in the street anything might happen. It was argued thatit might be reasonable to foresee injury to the child but not reasonable to foresee that the child's action would cause injury to others. I can see no force in that: one knows that every day people take risks in order to save others from being run over, and if a child runs into the street the danger to others is almost as great as the danger to the child.

Then Boltonv. Stone [1951] A.C. 850 was cited, and it was said that although injury to the driver of a vehicle in the street might be foreseeable as a possible consequence of the escape of the child it was not reasonably probable and, therefore, the Appellants are not liable. But, in my view, Bolton v. Stone establishes that if an event is foreseeable the antithesis of its being reasonably probable is that the possibility of its happening involves a risk so small that a reasonable man would feel justified in disregarding it, and I cannot believe that, if anyone had realised that the result of having a gate so easy to open might be a serious accident in the adjoining road, he would have thought it right to disregard that risk and do nothing.

I turn now to the second question, which is one of novelty and general importance. If the Appellants are right it means that no matter how careless the person in charge of a young child may be and no matter how obvious it may be that the child may stray into a busy street and cause an accident, yet that person is under no liability for damage to others caused solely by the action of the child because his only duty is towards the child under his care. There appears to be no reported case of an action of this kind, and the Appellants say that this indicates that no one has hitherto supposed that such an action would lie, for there must have been many instances of the driver of a vehicle suffering damage caused by a young child running in front of it. But in most cases of that kind it would not be worth while to sue the person who was in charge of the child, and in any event "the categories of negligence" are never closed.

The case most relied on by the Appellants was Bourhill v. Young [1943] A.C. 92, where it was held that a motor cyclist was under no duty to a woman who was not in any physical danger from his driving and who did not even see the accident in which he was involved but who suffered shock from hearing the noise of it. Those facts have not the faintest resemblance to the facts of this case but the Appellants say that the reasoning with regard to remoteness assists them. I do not think that it does. Lord Thankertori (at p. 98) said that the cyclist's duty was to drive " with such reasonable care as will avoid the risk of injury to such persons as he can reasonably foresee might be injured by failure to exercise such reasonable care and he referred to the area of potential danger. Lord Russell of Killowen (at p. 101) cited the well-known passage in the speech of Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 beginning "who, then, in law is my neighbour, as did Lord Porter (at p. 117). Lord Macmillan said (at p. 104) that a duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed", and Lord Wright (at p. 107) referred to the general concept of reasonable foresight as the criterion of negligence or breach of duty. If I am right in the view which I have already expressed that injury to other road users was reasonably foreseeable if this child was allowed to escape on to the street, then the reasoning in Bourhill v. Young is very much against the Appellants and they could only succeed on this argument if there were in connection with the care of young children some special feature which would prevent the application of the general principle.

The Appellants say that it would be unreasonable to apply that principle here because if such a duty is held to exist it will put an impossible burden on harassed mothers who will have to keep a constant watch on their young children. I do not think so. There is no absolute duty, there is only a duty not to be negligent, and a mother is not negligent unless she fails to do something which a prudent or reasonable mother in her position would have been able to do and would have done. Even a housewife who has young children cannot be in two places at once and no one would suggest that she must neglect her other duties, or that a young child must always be kept cooped up. But I think that all but the most careless mothers do take manyprecautions for their children's safety and the same precautions serve to protect others. I cannot see how any person in charge of a child could be held to have been negligent in a question with a third party injured in a road accident unless he or she had failed to take reasonable and practicable pre-caution for the safety of the child.

What precautions would have been practicable and what precautions would have been reasonable in any particular case must depend on a great variety of circumstances. But in this case it was not impracticable for the Appellants to have their gate so made or fastened that a young child could not open it, and, in my opinion, that was a proper and reasonable precaution for them to take.

Finally, it was urged that the general principle should not apply here because it does not apply where animals stray on to a highway, and young children, unable to appreciate danger, have some resemblance to domestic animals. But this analogy seems to me to be misleading. It is true that a person who keeps domestic animals is not bound to prevent them from straying on to a road or responsible for the consequences if they do stray; but the reason for that appears to be that a person is entitled to keep his animals on open or unfenced ground from which they can stray on to a road, and it has become a rule of law that he is not bound to do anything to prevent them from straying. That reason has no application to children, and I do not see why the rule of law which has grown out of it should apply to them either. Moreover a person who brings his animal on to a road or street and then negligently fails to look after it there is not free from liability. Counsel for the Appellants did not argue that this rather illogical distinction should be applied to children, and it would be strange if a person in charge of a child were under a different duty according to whether he let the child stray from his house or garden or took the child on to the road and then let it stray there. Counsel took the only logical course and argued that even if a person takes a child into the street and then takes no care of it he cannot be held liable for damage suffered by a third party as a result of its actions, and that argument gains no support from the rules which apply to animals.

I am therefore of opinion that the appeal should be dismissed.

Lord Tucker

MY LORDS,

During the course of this appeal the question was raised whether the Defendant Council owed any duty in respect of the children in its charge to users of the highway adjoining the school premises as distinct from their duty to the child or its parents, and in this connection reference was made to the law with regard to animals.

My Lords, I am satisfied that the animal cases are in no way analogous and afford no guidance in the present appeal. I think that in principle there can be no doubt that both Courts below were right in holding that persons in charge of tiny children (the child in question was just under four years of age) in premises adjoining a busy highway owe a duty to persons using the highway to take reasonable care to see that such children—being of an age when they cannot have acquired sufficient "road sense" to permit of their being allowed to travel unattended to and from school—shall not during school hours escape unattended on to such a highway, it being reasonably foreseeable that an accident involving injury to other road users as well as to the children may well result therefrom.

In the present case a child named David Morgan, a week or so before his fourth birthday, had been taken to the nursery school managed by the Defendant Council at Ammanford and left there in charge of the school authorities. Between 12.15 and 12.30 p.m. during school hours the child had somehow got out into College Street—a busy thoroughfare—and caused an accident which resulted in the death of the Plaintiff's husband.

My Lords, such an occurrence I think calls for an explanation from the Defendants. Not because the facts and circumstances are exclusively within their knowledge—a theory to which I do not subscribe—but because it was an event which should not have happened and which prima facie indicates negligence on the part of those in charge of the child just as much as the presence of a motor car on the foot pavement prima facie points to negligence on the part of the driver.

How then did the Defendants seek to explain or justify this child's presence in the road?

Their case was that the mistress in charge, Miss Morgan, had left this child and one other unattended by any adult for a few minutes while she went to the toilet before taking them out for a walk in the town and that she had been unexpectedly detained for a few minutes longer attending to another child who had received an injury, and during her absence the two children had got out of the school premises on to the road. The evidence with regard to times and distances showed that the children must have run out almost immediately after Miss Morgan left the room.

At the trial the only question debated, apart from that of the duty owed to the deceased man, seems to have been whether or not Miss Morgan had been guilty of negligence. On this issue Devlin J., although considering the case a borderline one, decided in favour of the Plaintiff. This view was upheld in the Court of Appeal, although Romer L.J. clearly indicated that but for the fact he did not feel justified in interfering with the trial Judge's finding he would have held otherwise. If the speeches in this House in the recent case of Benmax v. Austin Motor Co. Ltd. had been available to the Lord Justice he would, I think, undoubtedly have dissented.

My Lords, on this issue I agree with my noble and learned friends, Lords Oaksey and Goddard, that the evidence disclosed no negligence on the part of Miss Morgan. It is easy after the event to think of several things she might have done which would have avoided the accident which resulted from her absence, but the question is whether her failure to take such action in the circumstances which existed amounted to negligence. For myself, I have no hesitation in holding that Miss Morgan was not shown to have been guilty of any negligence and that no responsibility for the death of the deceased man attaches to her.

This does not, however, dispose of the case. The explanation put forward by the Defendants entirely fails to explain how or why it was possible for this tiny child to escape from the school premises on to the street. The trial Judge drew the inference that the child got out through the unlocked side gate opening on to a lane leading into the street. This was the way the child was brought to and taken from school, and I think the Judge's inference was the most probable one. No explanation was given as to why the gate was kept unlocked, or in such a condition that it was possible for a child of four to push it open or unlatch it. Nor was any other means of exit suggested as likely, except by going through other portions of the school premises not forming part of the nursery school and out of a gate leading directly on to the street.

My Lords, I think the Defendants failed altogether to shew that the child's presence in the street was not due to any negligence on their part or of those for whom they are responsible. It is true that no questions were directed to the Defendants' witnesses on this matter, but the Plaintiff should not suffer for the Defendants' failure in this respect. If, as is no doubt the fact, it is not possible for every child in the nursery school at every moment of time to be within sight of a mistress in view of the contingencies which must arise from time to time—such as those which occurred in this case—then reasonable precautions must be taken which will be effective to prevent children of this tender age running out on to a busy street. No such precautions were shown to have been taken in this case and on the evidence as it stood at the conclusion of the trial the Defendants had, I think, failed to rebut the presumption of negligence arising from the facts disclosed.

While entirely absolving Miss Morgan from the finding of negligence against her, I am none the less of opinion that the Defendants do not thereby escape responsibility, and for these reasons I would dismiss the appeal.

Lord Keith of Avonholm

MY LORDS,

If I find two toddlers, not quite four years of age, unaccompanied in a busy street, exposed to all the perils of a traffic accident, my natural reaction is to think that someone has been thoughtless, or careless, or negligent of their safety. This is not necessarily so, for, with that unpredictability which is characteristic of the very small, they may have eluded all reasonable vigilance of their guardians. If, however, the carefulness, or carelessness, of the person responsible for their safety becomes a material issue, it is, in my opinion, for the person in charge of them to negative carelessness, or to show reasonable care. In this matter I agree with Mr. Justice Devlin and Lord Justice Denning.

In what I have said and in what I am about to say I wish to make it clear that I am dealing with the case of a child so young that it cannot safely be allowed on a busy street by itself. With a child of an age to be allowed to find its own way to school, or to traverse the streets alone, different considerations arise. There can normally be no duty to prevent such a child from getting on to a street and in the case of a traffic accident in which it is involved the question of responsibility for the accident will be considered in general with reference to the conduct of the child itself and of the other person involved in the accident. There may also be special cases of country children from wayside cottages using a road in full sight of approaching traffic or tiny tots on some side street obviously used as a children's playground. Such cases will have to be considered on their special circumstances.

Turning now to the facts of this particular case I cannot avoid the conclusion that someone was to blame for the small boy, not yet four years of age, getting on to College Street. The child and another child of the same age, all dressed to go for a walk in the town with their teacher, were left in the class-room of a nursery school. The teacher had occasion to leave the room. The other small children were playing outside in a play pen under the supervision of an assistant teacher. The two children were left temporarily without any supervision. Two little girls, nine years of age, from the junior school, may have been for some time in the room preparing beds for the toddlers' afternoon nap. But there is no evidence from these girls and no evidence of what the children were doing while the girls were there.

The room gave on to a vestibule which led directly into a playground and from the playground access could be had by a gate to a lane leading to College Street, some 50 yards away. Another access to College Street could be had down the side of the junior school and through the junior school playground, but it seems unlikely that the children took that route on to the street. It is obvious that the children got through an open door and gate, or through a door and gate that was easily openable by children of four years of age. Miss Morgan says that the latch on the class-room door was so low that it could be opened by the nursery children. She also says that she relied on the two nine-year-old girls—presumably to keep an eye on the children while she was out of the room. But as I have said the two girls gave no evidence and there is no evidence at all as to how these little children got out of the school and on to the road, or as to how long they remained in the room after Miss Morgan left them. She was apparently kept out of the room longer than she expected, through an accident to another child, and during that time no steps were taken to see what the children were doing.

In that situation the defenders, in my opinion, have failed to give any explanation that would excuse them from the prima facie inference of carelessness that arises from the children having escaped on to the road. Whether the inference is one of lack of proper supervision, or lack of safeguards against very small children escaping through doors and gateways on to the street does not, in my opinion, matter. I would say that there was a presumption of negligence here that the defenders have failed to discharge.

Does there then arise any question of a duty arising, in respect of the child's escape, to the Plaintiff's husband? I think there does. The duty owed to the child is to see that it does not become involved in a traffic accident by which it is injured. In my opinion it should be in the contemplation of any reasonable person that just such an accident may well arise in the case of a very small child that is allowed to escape on to a busy thoroughfare in a town. If such a traffic accident is not too remote to be foreseen it is not, in my opinion, too remote to foresee injury to the person, other than the child, involved in the accident. It is not necessary that the precise result should be foreseen. The case is clearly distinguishable from Bourhill v. Young [1943] A.C. 92; 1942 S.C. (H.L.) 78 where the circumstances were such as to put the pursuer outside the field of persons to whom the motor cyclist in that case owed a duty.

Reference was made to a number of cases related to collisions with animals straying on to the highway. I agree that these cases cannot be equated to a case of small children allowed to stray on to a busy street in a town. The law with regard to straying animals is based on historical reasons which have no application to children of tender years unable to look after themselves. The law with regard to animals on the highway in relation to other users of the highway is not affected by the age or highway experience of the animal in question, and the law with regard to straying children cannot be elucidated by reference to principles derived from a right to departure cattle in open fields. No assistance in this case can, in my opinion, be obtained from examining cases of straying animals or considering the circumstances in which their owners may, or may not be liable for a traffic accident.

T would dismiss the appeal.


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