England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TUNBRIDGE WELLS COUNTY COURT
(Mr Recorder Gerrey)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th October 2002

Lord Justice Dyson:

1. Daryl Kearn-Price was born on 12 August 1983. At 8.40 am on 7 July 1998, he suffered a serious injury while he was standing in the playground of Tunbridge Wells Boys Grammar School when he was struck in the eye by a full-size leather football. He was aged 14 at the time and a pupil at the school. He has undergone extensive medical treatment, but has lost all useful vision in his left eye. The school is controlled by the defendant council. He started proceedings against the council alleging that the accident had been caused by the negligence of the school. On 8 January 2002, Mr Recorder Gerrey found in his favour on issues of liability and causation. The council appeals with permission of Hale LJ. The appeal raises issues as to the duty owed by a school to take care for the safety of its pupils while they are on school premises before school hours. Before I examine the legal issues raised on this appeal, I need to set out the facts.
2. The school is a secondary school. It had about 900 pupils at the time of the accident. There are two playgrounds. The upper playground, which is allocated for the use of years 7 and 8, is adjacent to the school buildings and, in particular, to the school staff room. The lower playground, which is used by the older pupils, years 9-11, is adjacent to the far side of the upper playground. In other words, the upper playground lies between the lower playground and the school buildings. The judge found that, although the lower playground is visible from the staff room, it would be difficult for any teacher in the staff room to see what size or type of football was being used in the lower playground. There is also a picnic area alongside the upper playground. The judge found that this area was used infrequently by the boys. At paragraph 55 he said: “…it was human nature and the most natural thing in the world for boys to congregate where their friends were and where the action was going on which was the playground”.
3. There were 5 a side football posts in the lower playground. Weather permitting, up to 8 games of football at any one time would be played every day up and down and across the playground, both in the period immediately before official school hours began, and during the school breaks.
4. Between 8.30 and 8.45 am, there would be between 30 and 40 teachers in the staff room generally chatting and preparing for school. There was no patrolling of the playgrounds at that time. Most pupils started to arrive at the school at about 8.30am, but some arrived even earlier. The information for new entrants for the school year 1997-98 stated:

“The school day begins at 8.45 am and finishes at 3.45 pm. It is punctuated by mid-morning lunch and mid-afternoon breaks. Pupils should aim to be present at least five minutes before the school begins. The school will be open for early arrivals during inclement weather.”

5. On the basis of this document, the judge found (paragraph 39) that pupils were expected to be at school by about 8.40 am “or perhaps slightly earlier”, and that the accident, therefore, occurred “at what was regarded as formal school time”. The daily timetable showed that registration took place between 8.45 and 8.50 am; assembly or extended registration between 8.50 and 9.10 am; and the first period started at 9.10 am. Unless there was bad weather, the pupils were not allowed into the school buildings until the bell rang at 8.43 hrs. The head teacher is Mr Derek Barnard. He has occupied this post for about 15 years, and was deputy head for 8 years before that. He said that none of the schools at which he had worked provided supervision of the playground in the morning before school started. Other members of staff gave evidence to the same effect. There was, however, full-time supervision of the boys at the school in both playgrounds during the break periods. The judge found that Mr Barnard was keen on discipline and maintained strict standards, and that generally the pupils were well-behaved.
6. There was a good deal of evidence as to the measures taken by the school to curb the use of full-size leather footballs in the playgrounds. By the time of the accident, the use of full-size footballs had been banned, unless they were made of foam. There was no reference to the ban in the school rules contained in the “Information for new entrants” issued by the school to new entrants at the beginning of each year. But an internal document (entitled “School calendar”) issued by Mr Barnard to the teachers on 16 March 1998 included the following:

“Please emphasise to all boys the following:

(a) Top playground—years 7 to 8

(b) Bottom playground-years 9/10/11

NO basketballs. Small footballs-preferably tennis balls”

7. On 18 March 1998, a pupil called Robert Kapelach was hit on the face by a leather football in the playground. The next school calendar to be issued (23 March) contained the entry: “Playgrounds: no leather footballs or basketballs please. Do emphasise this to all boys”. The judge found that there was a policy of banning full-size leather footballs, and that this was set out from time to time in the “school calendars”, and communicated by Mr Barnard to the staff. He also found that the boys were warned about the ban once or twice a year either by himself or other members of staff.
8. At paragraph 36 of his judgment, the judge turned to consider what steps the staff took to enforce the ban, apart from the reminders of its existence to which I have just referred. He said:

“It seems to me that any visit to the lower playground on almost any day would have made it obvious that there were a number of ball games in progress, and that on a daily basis a number of those ball games involved the use of the prohibited footballs, yet no such thing was done, no flying visits to check what was happening, no attempt as the boys filed into school with their full-sized balls in plastic carrier bags to check the size. There was the occasional confiscation of a ball from the playground during break-times, but nothing further. Therefore on the evidence before me, it really seems that apart from imposing the ban and repeating the ban, there is no evidence whatsoever as to any positive steps taken by any members of the staff to ensure that the ban was complied with.”

9. There was evidence that there had been a series of accidents involving facial injuries caused by footballs in the playground(s). Apart from Kapelach, these included: Edwards 15 May 98 (“hit on head by football or shoe”); Rich 18 May 98 (“hit in face with football”); Githam 3 June 98 (“football hit left eye break time”); Worsley 5 June 98 (“ball in face with football”); Hickey 26 June 98 (“ball in eye playing football”); Shaw 29 June 98 (“hit on face by ball in playground”); and Beard 30 June 98 (“hit in face with football”). In none of these accidents were injuries suffered as serious those sustained by the claimant. The treatment administered was usually a cold compress and/or rest. It is also right to point out that there was no evidence as to the size of the balls used on each of these occasions.
10. Despite this succession of accidents between March and June 1998, the school took no further steps to enforce the ban. The judge found (paragraph 38) that footballs may have been occasionally confiscated during breaks, but never during the pre-school period. Accordingly, apart from occasional reminders of the existence of the ban, no positive steps were taken to ensure that the ban was enforced in the lower playground during the pre-school period. The judge also found that the staff must have known that football was being played regularly, and that if they had visited the playground any morning, it would have been obvious that the banned balls were being used.
11. The claimant arrived at the school at about 8.30 am on 7 July, and joined a group of friends in the lower playground. He was standing there waiting for school to begin. He was about 10 to 15 yards away from the football posts chatting, when he turned his head and was struck in the face by a full-size leather football. There were at least 4 games of football in progress. The playground was not as crowded as on a normal school day, but there were nevertheless about 200-250 pupils there at the time of the accident. The judge found that even with only 200 present, it would have been “somewhat crowded”.
12. Having reviewed the law, the judge expressed his conclusions in these terms:

“ 53. The school itself had banned the very type of ball which caused the claimant’s injury. I have already indicated that there was in general terms, as I find, a lack of any positive action on the part of the staff at the school to enforce the ban. In my judgment, merely circulating the staff and the occasional reminder at assembly once or twice a year with the newsletters to parents was not in fact reasonable behaviour in enforcing this ban. As I have indicated, a simple visit to the lower playground on any school day would in my judgment have revealed to the defendants the fact that the ban was being regularly and on a daily basis ignored. It would have been a simple matter without supervision every day, which I am not suggesting was necessary, to have found that the ban was not being enforced. It seems clear from the evidence of Mr Crouch that certainly when the reminder was brought home forcefully the boys tended to obey the ban, and it seems to me that if word had got out that spot checks were going to be made and the ban was jolly well going to be enforced come what may, the boys would have heeded it. Therefore, I do not consider on the evidence before me that the defendants on the facts of this case took reasonable steps to discharge their duty of care in enforcing this particular ban, knowing as they did of Mr Barnard’s own admission of the danger that the use of these footballs created.

54. My view is reinforced by the documents to which I have already referred relating to the incident in March 1998. In that month there was an injury recorded as specifically involving the use of a leather football. Apart from issuing the school calendar the following week, there is no evidence before me that the school took any steps to enforce the ban. There was an injury involving a football in June, a few weeks before the claimant’s own accident, again, no steps taken to see that this ban is being complied with so as to ensure by taking reasonable steps the safety of those playing football, as in my judgment the school should. It was a well-known activity, it took place on a daily basis, and in my judgment, on the evidence which I have heard and for the reasons that I hope I have spelled out in sufficient detail, I do not consider that the school discharged the duty of care incumbent upon it to avoid the risk of obvious and foreseeable injury. As I have indicated, the fact that the injury which occurred was, sadly, much more severe than previously experienced is not sufficient, the school being fully aware of the risk of eye injuries from the use of footballs and the particular danger from the use of the banned footballs. In those circumstances, in my judgment, the claimant is entitled to succeed in his claim.”

13. Finally, he dealt with the council’s plea of contributory negligence. It was the council’s case that the accident had been caused or contributed to by the claimant’s own fault in failing to stand in the picnic area and in standing too close to the goalposts. The judge rejected both points. I have already referred to what he said at paragraph 55 of his judgment. There is no challenge to these conclusions of the judge.

Duty of care to supervise

14. On behalf of the council, Mr Dingemans QC submitted that the judge should not have found that the school owed the claimant a duty to enforce the rule banning full-size leather footballs before school hours. It was unreasonable to expect the staff to supervise the pupils in the pre-school period. In his skeleton argument, Mr Dingemans relied on the judgment of Lord Denning MR in Ward v Hertfordshire County Council [1970] 1 WLR 356. In his oral submissions, he conceded that there may be cases in which a duty to supervise is owed in the pre-school period: it depends on what is reasonable in all the circumstances.
15. The general nature of the duty owed by a school towards a child in its charge is not in doubt. It is to take such care for the health and safety of the child as is reasonable in all the circumstances. I would accept as correct the following statement of the law at paragraph 7-230 of Clerk & Lindsell on Torts (18^th edition):

“Schools A teacher is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent, taking into account the conditions of school life as distinct from home life, the number of children in the class and the nature of those children. This seems to be no more than what would be reasonable in the particular circumstances. A teacher cannot be expected to insure children against injury from ordinary play in the playground or, indeed, the classroom. It is the duty of the teacher to supervise children in the playground but supervision before school or as the children leave school may not be required.”

This passage is entirely consistent with the summary of the relevant principles contained at paragraph 18 of the judgment of Auld LJ in Woodbridge School v Simon Chittock [2002] EWCA Civ 915.

16. The problem of what duty, if any, is owed by a school to pupils who are present on the school premises before school hours has exercised the courts on a number of occasions. I have already referred to Ward v Hertfordshire CC. In that case, at 8.50 am an 8 year old pupil was running a race up and down the school playground, when she stumbled and hit her head against a wall and suffered injuries. The children, who began to arrive at school from 8.15 am onwards, were not supervised until classes began at 8.55 am. The claim in negligence succeeded at first instance. The defendant’s appeal was allowed. Lord Denning MR allowed the appeal for three reasons: (a) the wall was not dangerous; (b) there was no duty to supervise: the staff were indoors preparing for the day’s work and could not be expected to be in the playground as well; and (c) even if staff had been in the playground they could not have prevented the accident. Salmon LJ said that the wall was not dangerous, so that even if a teacher had been present in the playground, he would not have been under an obligation to stop the children racing. He recognised, however, that if the accident had been caused by the children fighting or indulging in “some particularly dangerous game which a master should have stopped if he had been there, the fact that there was no supervision at the time might have afforded anyone who was injured in that way a good cause of action”. It was not necessary to express any concluded view on that point. Cross LJ said that the appeal should be allowed because the wall was not dangerous, and increased supervision would have been “useless” because it would be unreasonable for any supervisor to prevent or attempt to prevent children from running races between the walls. In my judgment, Ward is not authority for the proposition that a school never owes a duty of care towards children who are in the playground before school hours. I doubt whether Lord Denning was intending to go that far. But the other two members of the court plainly did not decide the case on that basis.
17. The problem was considered by the High Court of Australia in Geyer v Downs and anr [1977] 17 ALR 408. In that case, the appellant suffered severe injuries when she was struck on the head by a softball bat wielded by a fellow pupil at school, who was playing in a softball game in the school playground before school started. The accident occurred at 8.50 hrs. Until 9.00 hrs, the children were under no regular supervision. From 9.00 hrs, the playground was under supervision by the teachers, and lessons started at 9.30 hrs. The jury awarded the appellant damages. The verdict was set aside by the court of appeal. The appellant’s appeal to the High Court was allowed. The principal judgment was the single judgment of Murphy and Aickin JJ. At page 418, they said:

“It was urged for the respondent that there was no duty of supervision owed to the children before “school hours”. That expression was taken in the present case to mean the period of time beginning at 9.00 am, at which the “Daily Routine” stated that the playgrounds were to be supervised. Reliance was also placed upon the departmental instruction 5.2.4.1 as set out, supra, which it was said produced the result that the headmaster had no power or authority to require teachers to supervise the playground otherwise than during the hours 9.00 am to 3.30 pm as set out in that instruction. It was said therefore that the headmaster could not be regarded as negligent by failing to take measures to provide supervision of the playground prior to 9.00 am when he had no authority to direct any teacher to be present to perform that function.

So to regard the case is to take an unduly restricted view of the relevant circumstances. There is no case which lays down that there is no duty of supervision prior to “school hours”, however that expression may be understood. The point seems to have been seldom referred to. In Ward v Hertfordshire County Council [1970] 1 All ER 535 at 538; [1970] 1 WLR 356 at 361, Salmon LJ expressly reserved the question whether lack of supervision could give rise to a cause of action in a case where the injury occurs at 8.50 am but “the school does not start until 8.55 am”. There seems no basis for treating it as a rule that there can be no duty of supervision outside “ordinary school hours” or “before school started”. The question must depend upon the nature of the general duty to take reasonable care in all the circumstances. It is not enough to look only at the departmental instructions and to say that the duty of supervision arises only during the periods referred to in those instructions.”

18. I would unhesitatingly reject the proposition that, as a matter of law, no duty to supervise can be owed by a school to its pupils who are on school premises before or after school hours. As I have explained, Ward is not authority for such a proposition. In my judgment, a school owes to all pupils who are lawfully on its premises the general duty to take such measures to care for their health and safety as are reasonable in all the circumstances. It is neither just nor reasonable to say that a school owes no duty of care at all to pupils who are at school before or after school hours. Nor did Mr Dingemans so submit. It is inevitable and entirely reasonable that pupils will wish to arrive at school some time before school hours. In the present case, the claimant arrived at the school at about 8.30 am. That is typical of what happens in schools up and down the country. The real issue is what is the scope of the duty of care owed to pupils who are on school premises before and after school hours. It may be that it is not reasonable to expect a school to do as much to protect its pupils from injury outside school hours as during school hours. All will depend on the circumstances. The longer the period before the start of school hours, the more difficult it may be for a pupil who is injured to say that there was a breach of duty of care in failing to supervise. Moreover, it may be unreasonable to expect constant supervision during the pre-school period, but entirely reasonable to require constant supervision during the break periods. That was the judge’s view in the present case: see paragraph 53 of his judgment. But the governing principle is that the school is required to do what is reasonable in all the circumstances. That was the approach adopted by the High Court of Australia in Geyer, and I agree with it.
19. It seems to me that this is the approach that was adopted by the judge in the present case. The question is whether he erred in his application of it.

Breach of duty

20. Mr Dingemans submitted that, if the school did owe the claimant a duty of care, the judge was wrong to find that there was a breach of it in this case. The judge imposed an unreasonably high standard of care on the school in requiring the ban on full-size leather footballs to be enforced before school hours. He failed to give adequate weight to the unchallenged evidence of the teachers that no playground supervision was provided before school hours at any secondary schools where they had taught. This evidence was the best evidence of the requirements of reasonableness: see per Hirst LJ in Wilson v The Governors of the Sacred Heart Roman Catholic School [1998] PIQR P145. The judge failed to take sufficient account of the fact that the school discipline record was good and the boys were generally well-behaved; and that the ban had been communicated to them at assembly and by the teachers. Mr Barnard had acted reasonably in looking through the accident books and ensuring that the relevant rules were the subject of reminders.
21. Next, Mr Dingemans submitted that the judge failed to give adequate weight to the evidence which showed that there were very few pre-school accidents, and that no serious injuries had been caused by the use of leather footballs. In these circumstances, he was wrong to impose a duty on the school to enforce the ban before school hours. There was no evidence to suggest that it was reasonable to require the staff to make occasional spot-checks during the pre-school period, especially since the teachers would confiscate balls if they saw that they did not conform to the rules.
22. The judge was also wrong to make a finding that the school had failed to take any positive steps to enforce the ban. This finding was inconsistent with the evidence that full-size leather footballs were confiscated by teachers when supervising the playgrounds during breaks.
23. Mr Dingemans also submitted that the judge failed to give any weight to the admission made by the claimant in cross-examination that the school had acted properly by informing the boys of the ban in assembly and through the teachers. The judge should have taken this evidence into account when deciding whether the school had acted reasonably, and whether it was reasonable to impose a duty to carry out spot checks before school hours.
24. In my judgment, the judge was entitled to hold that the scope of the duty of care owed by the school to the boys encompassed a duty to take reasonable steps to enforce the ban on full-size leather footballs, and to carry out spot checks during the pre-school period to that end. It was common ground that no such spot checks were carried out.
25. Mr Barnard knew that full-size leather footballs were dangerous. That is why they were banned. He was asked about this in the course of his evidence. At page 16 of the transcript, the following exchange took place:

“Q. And because these boys are not participating they would not be following the game. You would not expect them to –

A. They would be standing around talking.

Q They would be standing around talking, common sense says that. They would not be looking, so they would be at particular risk if going round their feet is a game of football, is that right?

A. Yes

Q That danger is made worse if there are a series of games going round, criss-crossing a particular playground, is it not, because there will be more balls in action?

A. I accept that.

Q And it would be particularly dangerous if some of those balls were full sized balls?

A. I accept that.”

26. Later, at page 27, he conceded that he emphasised that ban in assembly because he thought it was something “important”. It was important because he had carried out a risk assessment and was “concerned”, and had discussed with colleagues what they should do about the type of balls that were being used in the playgrounds. The balls were dangerous, and they had to do something. At page 29, the following exchange occurred:

“Q. I know that. The reason why you did it was not because you feared somebody would get a slight knock but you feared that somebody might suffer a serious injury, that is right?

A. The possibility of serious injury; secondly, the school had grown in size since 1988 when I took over, and has done each year. When I took over in 1988 there were 595 pupils on the premises and the playgrounds were adequate. We now have the same sized playgrounds and we have 1000 boys.”

27. There was plenty of evidence that the ban was not being enforced both before and during school hours. In his witness statement, the claimant said that “pupils were not supposed to play with large balls or leather balls, but this rule was rarely enforced”. In his oral evidence he said that large balls were used every day, but there were only occasional confiscations. Mr Hill was quite unaware of the ban. Mr Straw said that the ban was flouted, and that balls were occasionally confiscated. Mr Crouch said that larger banned balls were used every day, but were confiscated only rarely.
28. The judge was, therefore, entitled to find (as he did at paragraph 38) that the ban was being regularly flouted, that it must have been obvious to the staff that this was happening, and that the only steps taken to enforce the ban were the reminders to which I have referred and the occasional confiscation of the offending balls. Full-size leather footballs are dangerous as Mr Barnard conceded: hence the ban. They are particularly dangerous to pupils who are not participating in a game of football, but are bystanders who are simply standing around chatting in a crowded playground where a number of games are being played in different directions. Mr Barnard rightly recognised the risk of serious injury as a possibility, despite the fact that throughout his long teaching career, he had not encountered as serious an injury caused by a ball as that which was suffered by the claimant on 7 July 1998. In my judgment, the judge was entitled to conclude that, in all the circumstances, the school was in breach of its duty of care in failing to enforce the ban more effectively, in particular by a more rigorous policy of enforcement and spot checking during the pre-school period. Such steps were reasonably required having regard to the fact that (a) the ban on the use of full-size leather footballs was known to be regularly flouted, (b) they were known to be dangerous, and (c) the additional steps would not impose an undue burden on the school.
29. I turn to consider the specific points made by Mr Dingemans. I start with his reliance on Wilson v The Governors of the Sacred Heart Roman Catholic School. That case was concerned with an accident suffered by a nine year old pupil who was injured by a fellow pupil whirling an anorak around his head. The accident occurred when they were on their way from the school buildings to the school gates at the end of school day. There was no member of staff on duty to supervise the passage of pupils on their way home. The claim against the school succeeded before the trial judge. The defendant’s appeal was allowed. Mantell LJ relied on a number of circumstances. There was no particular history to suggest that supervision was needed at that time of the day; a general instruction had been given to all pupils to behave properly on their way home; the distance between the buildings and the gate was short; usually there would be parents waiting to meet the younger pupils; and the headteacher would often be able to see what was going on. In these circumstances, there was no breach of duty towards the claimant. Hirst LJ agreed that the appeal should be allowed for the reasons given by Mantell LJ. He emphasised the shortness of the period in which the pupils moved from the buildings to the gates. He then added:

“In my judgment, the very short period in which pupils moved from the exit from the school building to the gate at the other end of the playground is quite different, even allowing for the fact that, as the headmaster accepted and Mr Turton emphasised, departing pupils are likely to be high spirited at that particular moment of the day. Moreover, and to my mind most importantly, there was no evidence that supervision at that juncture, as contrasted with the lunch break, is standard procedure, as it surely would be if it was an equally reasonable requirement. I therefore would also allow the appeal.”

30. I accept that evidence of what is standard procedure at schools generally is highly material to a determination of what is reasonably required of a school. But it is no more than that. Sometimes, although probably rarely, a court may conclude that the standard generally applied is not sufficient to discharge the duty of care. In the present case, the evidence of practice elsewhere relied on by Mr Dingemans was of a limited nature. Mr Barnard and the other three teachers who gave evidence said that in the schools where they had worked, there had been no pre-school supervision. They did not purport to vouch for the general position throughout the country. The judge took their evidence into account as a relevant consideration (paragraph 52). In my judgment, he was required to do no more.
31. It is clear that the judge did take into account the fact that the school discipline was good: he relied on it when reaching his conclusion on the causation issue (see below). I do not accept that he failed to take into account the other matters mentioned by Mr Dingemans. The real complaint is not so much that he failed to take these matters into account. Rather it is that the conclusion that the judge reached was wrong. But for the reasons that I have already given, I consider that the judge reached the right conclusion on the evidence, or at least one that was reasonably open to him and with which this court should be slow to interfere.
32. Finally, I should deal with the admission by the claimant on which Mr Dingemans relies. The relevant passage in the evidence is at page 9D:

“Q And so if the headmaster communicated a rule about leather footballs in assembly and that was reinforced by teachers once or twice a term on average, and enforced when the teachers would see a basketball being kicked or a leather football on the ground, they were acting perfectly properly weren’t they”

A. Yes.”

It is unclear whether the judge attached any weight to this admission. In my view, he was not obliged to do so. The issue of what was reasonably required of the school in the circumstances of this case was a question for the judge to determine. The opinion of the claimant was of no greater assistance to the resolution of that issue than the opinion of any other layperson.

Causation

33. Finally, Mr Dingemans challenged the judge’s finding on causation. He pointed out that the evidence was that confiscations were made during the breaks, but this did not and could not stop all use of leather footballs during the break periods. In short, there was no evidence to support the judge’s finding that occasional spot checks would have made a difference, and prevented the accident. Mr Dingemans submitted that this court should not give deference to the judge’s finding, since we are as well able as was the judge to assess the likelihood of the accident having been prevented if the ban had been more rigorously enforced and spot checks introduced. The finding is an inference, and not a finding of primary fact dependent on the credibility of a witness which this court is conventionally reluctant to disturb.
34. There is considerable authority to support the proposition that, when the question is what inferences are to be drawn from specific facts, an appellate court is in as good a position to evaluate the evidence as the trial judge: see, for example, Saunders v Adderley [1999] 1 WLR 884, 889E.
35. But even in relation to inferences to be drawn from primary facts, there are many cases where the trial judge is in a better position than this court to make the correct finding. The point was made by Steyn LJ in Hippolyte v London Borough of Bexley [1995] PIQR P309, P312, where he said:

“It is in my judgment very important to bear in mind that this is an appeal on issues of fact, albeit that it involves, principally, a challenge to inferences. It is important to note the approach that the law requires of an appellant court. Where there has been no misdirection on fact by the trial judge, the presumption is that his conclusion is correct. The appellate court will only reverse it where it is convinced that it is wrong. In such a case, if the appellate court is merely left in doubt as to the correctness of the conclusion, then it will uphold it.

For my part, I am satisfied that nowhere in the judgment is there to be found any misdirection by the judge. Indeed, I pay tribute to a careful and balanced judgment. Furthermore, it must be borne in mind that even in relation to inferences from established fact, a trial judge is often in a superior position to the Court of Appeal. This is, in my judgment, such a case. I say that because what we are concerned with is a judge’s interpretation of primary facts, and it is that interpretation which has proved to be the decisive matter in the case.”

36. In my judgment, that passage has application in the present case. The judge’s central finding was that “if word had got out that spot checks were going to be made and the ban was jolly well going to be enforced come what may, the boys would have heeded it”. Mr Dingemans submitted that this finding was inconsistent with the evidence of Mr Crouch. In his witness statement, Mr Crouch said that, after the claimant’s accident on 7 July 1998, the pupils were reminded of the ban in assembly and more balls were confiscated. They took notice for a couple of weeks, but “with time the full size footballs have crept back into the playground”. Basing himself on this evidence, Mr Dingemans submitted that it was not open to the judge to make the finding that he made: the attempts to enforce the ban contemplated by him would not have prevented the accident.
37. Mr Brown responded by pointing out that Mr Crouch’s statement was made in August 1999, long before the newsletter of 25 July 2000 in which notice was given banning all but small sponge footballs. Mr Barnard said in evidence that to the best of his knowledge this recent change in policy had worked. It would seem on this evidence that between the date of the claimant’s accident and 25 July 2000, there had been no significant change in the approach of the school to the enforcement of the ban. The judge plainly thought that until 25 July 2000 the ban was not being effectively enforced, and that the boys did not take the ban seriously. It was common ground that the boys were generally well-behaved. In those circumstances, it was in my view open to the judge to conclude that the boys would have complied with the ban if they had thought that it was being taken seriously by the school. Having heard the evidence and seen the witnesses, the judge was in a better position than this court to make such a finding. In my view, his finding on the causation issue should not be disturbed in the absence of some compelling reasons to do so. For the reasons submitted by Mr Brown, the evidence of Mr Crouch provides no such reason.

Conclusion

38. It follows that in my judgment this appeal should be dismissed. I am conscious of the ever increasing pressures piling on the teaching profession. As Lord Slynn pointed out in Phelps v Hillingdon Borough Council [2000] 3 WLR 776,792, “the professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional”. But the law expects of schools no more than that they show such care towards their pupils as is reasonable in all the circumstances. It is important to emphasise that the claimant in the present case was not playing football; he was merely a bystander in a crowded playground where a number of games were being played, and he was behaving entirely reasonably in being where he was and doing what he was doing. The school appreciated that full size leather footballs were dangerous and that the ban on their use was being flouted daily. The attempts to enforce the ban during school breaks were desultory, and during the pre-school period, non-existent. This was a well-behaved school. If the pupils had understood that the school was serious about enforcing the ban, they would have complied with it. To require the school to make spot checks during the pre-school period (at any rate during the period shortly before registration started at 8.45 am) was not unduly onerous. There were 30-40 members of staff in the staff room during that period. In the particular circumstances of this case, therefore, the conclusion of the judge is unassailable.

Lady Justice Arden:

I agree.

Lord Justice Schiemann:

I also agree.