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Cite as: [1999] IESC 13, [1999] 1 ILRM 458

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Flynn v. O'Reilly [1999] IESC 13; [1999] 1 ILRM 458 (11th January, 1999)

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O ‘Flaherty J,

Keane J,

Murphy J.,

(135/98)

BETWEEN:

MAURA FLYNN (A MINOR)

SUING BY HER MOTHER AND NEXT FRIEND MARY FLYNN

Plaintiff/Appellant

.v.

SEAN O’REILLY

Defendants/Respondent

Judgment (ex-tempore) delivered on the 11th day of January, 1999, by O’Flaherty J.

1. This is an appeal brought on behalf of the infant plaintiff from the judgment and order of the High Court (Smyth J.) sitting in Galway where he tried a personal injuries action brought by Maura Flynn. The action was tried on 30th and 31st October, 1996. The background facts of the accident can be briefly stated. There was a school sports day at St. Colmcille’s National School, Castlegar, Co. Galway on the 21st June, 1990, in a very small field adjacent to the school that measured approximately 64 yards by 33 yards. It was a field that was generally used for hurling and camogie and there was a rule, as far as these sports were concerned, that they should use ground hurling and ground camogie rather than play the ball in the air because there was a low wall and it was undesirable that the ball

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should go out of bounds so to speak. Mr. Bourke, S.C., has laid some emphasis on that as probably a cause that would lead to the field being somewhat irregular, or cut up or not as smooth as it might be.

2. In any event, on the day in question there were perhaps 90 to 100 pupils taking part in various races that are held on such days, the usual sprints and egg and spoon races and so forth. race which was a running backwards race. But then came along a rather unusual form of The judge came to hold that there were perhaps 15 to 20 in this race mixed between boys and girls. As Maura Flynn, a pupil at the school was going backwards, she said that she felt that her foot got caught on some kind of hole or depression or something in the ground and she fell and she injured not her leg but her left wrist. Miss Flynn was aged about 11 years at the time.

3. She fractured her left wrist. While it did not knit as smoothly as one would have hoped nonetheless she seems to have made a good recovery from the injury and I do not think it would be right to categorise it as a serious or even a significant injury. However, we are not concerned with the injury aspect of the case because the trial judge reached the conclusion that there was no negligence on the part of the school teachers. He took the trouble of going to see the scene of the accident himself and indeed performed an experiment on it. However, he made it clear that that was not going to be evidence in the case.

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4. I approach the case by dealing with it thus: the height of the case that the plaintiff mounted in her pleadings, at the trial and indeed on appeal was to say that really this field was somewhat rough and uneven and unsuitable for a backwards running race. Towards the side over, near the wall, it was that much more rough and so forth. Mr. Bourke said that really emerged when the defendant’s witnesses gave evidence. He also says the engineer called on behalf of the plaintiff, Mr. Roche, gave evidence that this was not a suitable venue for a race such as this. Taking, as I say, the plaintiff’s case at its height I am unable to agree that there was any negligence in the case. There must be some risk attached to all forms of sport even the simple games that one might have at such a sports’ day. In a hard-surfaced playground people will come to grief from time to time.

5. That was the very question that was addressed by this Court in the case of Lennon .v. McCarthy , Supreme Court , 13th July, 1996 unreported which is noted in McMahon and Binchy, A Case Book on the Irish Law of Torts at p.182. There the pupil was much the same age as the pupil here and they were engaged in a game of “tig”. The plaintiff was being chased by another pupil in this game of tig and running by a flat fence in a hollow below the yard where a number of trees were growing and there were also some hawthorn bushes. A branch projected out horizontally for seven feet from one of the hawthorn

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bushes and as they ran along one of the boys pushed the bush and then the plaintiff, in close pursuit, was struck in the eye by the rebounding branch. He sued the manager and the principal of the school for negligence. Ó Dálaigh C.J., for the Court, laid down the standard of care, which was not in doubt, that the duty of the school master is to take such care of his pupil as a careful parent would do for his children. And that when normal healthy children are in the playground it is not necessary that they should be under constant supervision. He went on to say: -

“In effect the Court is being invited to say that a careful father looking into this field would consider it an unsuitable dangerous - -a field for boys of 9 to 10 years of age to play in; that he would, or rather should, foresee that children would be likely to be injured there.

I am wholly unable to accept this view. It is unreal. Its effect would be to proscribe the playing of ordinary simple games like ‘tig’ in the ordinary surroundings of rural Ireland. What happened here was an accident such as is inseparable from life and action and no circumstances exist which would warrant placing responsibility for it on the plaintiff’s school teacher.”

6. This is much the same situation. The history of the field was, everyone agrees, that it was not Wimbledon or Lansdowne Road or Wembley or some

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place like that, this field was for rather simple games and to adopt the words of Chief Justice Ó Dálaigh it would be unreal to say that a parent would regard this field as dangerous. Indeed the history of the games that had been played and the sports that had been held there did not point to anyone having come to grief in any fashion in the past.

7. The judge in the course of a very careful judgment made a number of findings of fact which are as follows: -

“(1) the race was not run in lanes; (2) the plaintiff was somewhere to the right of her brother in the line up and during the race [in other words he was holding that the plaintiff was not perhaps as far to the margins of the field as she claimed]; (3) the participants were carefully supervised [there is no doubt about that, there were four teachers on duty]; (4) the plaintiff fell but was not seen by Mrs. Ryan to fall - who was running side ways with the participants; (5) I find as a fact and as a matter of probability that the plaintiff was not as far off the centre of the pitch as she thinks and was not on, at or near the periphery of the field, though she was towards it, away from the centre, but not in the position in which she thinks or near the sidewall. Had she been so Mrs. Ryan should and would, for she struck me as a very alert teacher, have seen her fall; (6) the plaintiff says she tripped over something, it was a hole covered with grass of about two inches deep. And that immediately after she fell or before being taken into the school she noticed this.”

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8. He went on to hold that it was rather improbable that she might have detected that. He proceeded to say:-

“I find great difficulty in accepting that the plaintiff tripped or got her foot caught in a hole because the motion of running backwards involves a springing movement on the toes and the heels must be raised throughout the running movement.”

9. Well the latter finding is probably the one that is most open to doubt. However, nothing turns on it because even accepting that there was some indentation or some unevenness and accepting that there is some risk attached to people running backwards as opposed to running forwards and that that is more hazardous, nonetheless, do we lay down that that should be forbidden in a way that would prevent children having due freedom to play and engage in sports? We think that would be too strict a rule. It would be to do what the law commands us in assessing negligence not to do, which is to impose standards which are unreasonable having regard to all the circumstances. It would really be to attempt to introduce a rule of absolute liability - which would be to go too far.

10. I do not want to part with the case without saying that the notice of appeal in this case is somewhat deficient though Mr. Bourke fairly enough faced up to this. All that we got were very general grounds of appeal. Counsel

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for the plaintiff has developed certain aspects of the case and he has done so without objection from Mr. O’Hagan, S.C., and we have been able to deal with them. In future it would be important to try and be as explicit as possible in setting forth the grounds of appeal.

11. I would dismiss the appeal.