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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hunter (AP) v Perth & Kinross Council & Anor [2001] ScotCS 191 (24 July 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/191.html
Cite as: 2001 SCLR 856, [2001] ScotCS 191
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OUTER HOUSE, COURT OF SESSION |
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A562/01 |
OPINION OF LORD EASSIE in the cause KIMBERLY JUNE LOUISE HUNTER (AP) Pursuer; against PERTH & KINROSS COUNCIL AND ANOTHER Defenders:
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Pursuer: Miss Coutts; Ketchen & Stevens, W.S.
First Defenders: Lake; Simpson & Marwick, W.S.
Second Defender: Hayhow; Skene Edwards, W.S.
24 July 2001
[1] The pursuer in this action seeks reparation in respect of injury suffered by her in an incident within the grounds of Perth Academy on 29 April 1997 when she was 12 years of age and in her first year at the Academy. She has convened as the first defenders the local education authority who own and manage Perth Academy. As a second defender the pursuer has convened another pupil then attending Perth Academy, who is one month younger than her and who was also in his first year of secondary education at that school. Damages are sought jointly and severally against both defenders.
[2] In the course of the incident, the pursuer suffered injury to her teeth and to her lip. On the morning of the diet set down for proof of the whole action, the pursuer sought to amend her pleadings by tendering a minute of amendment, seeking to introduce a claim for future recurring costs of dental treatment in the shape of repeated placement of crowns yet to be provided in a future operation for the surgical removal of her two front teeth. It was stated by counsel for the pursuer that the question of the cost of future care and treatment - to which the pleadings had not hitherto adverted - was raised by counsel in March 2001 and although an orthodontical examination and report had been requested on 29 March 2001, that examination had taken place only in the week preceding the diet of proof. It was accepted by counsel for the pursuer that the defenders would be prejudiced if not given an opportunity to investigate this new head of claim. Counsel for each of the defenders opposed the proposed amendment or a discharge of the diet but accepted that the matters raised in the minute of amendment did not touch on the merits, for which their preparations were complete. Since parties were thus prepared for proof on the merits and the necessary witnesses had been cited, I considered that the appropriate course was to follow a suggestion made by counsel for the pursuer and to exercise the powers contained in Rule of Court 36.1 by separating the proof on the merits from proof on quantum. Accordingly the proof, before answer, proceeded respecting liability alone.
[3] As might be expected, certain matters of fact were not in dispute. The incident in question occurred shortly after classes were dismissed for the day with the sounding of the final bell at 15.30 hours. The pursuer and the second defender both travelled to and from school by a school bus service, the pursuer's home being in Scone while the second defender's was in Burrelton. A number of buses were required to service the transport needs of pupils from Scone. Those buses left from an area of the school grounds lying to the south east of the main buildings of the Academy, particularly the home economics wing. To the south east of the area from which the school buses left, which was covered with tarmacadam, was a car park used by members of the teaching staff for parking their private cars and yet further to the south east lay the school dining hall. The buses destined for Scone left the school by an exit onto Oakbank Crescent, Perth. That street was itself the location of a further bus departure point, namely for those buses going to Balbeggie and Burrelton. A third bus departure location, from which various other buses left, was to the north of the school building at the main entrance to the school on Viewlands Road, Perth. Pupils intending to catch the buses to Burrelton and Balbeggie in Oakbank Crescent would generally require to pass over the area on which the Scone buses were parked prior to their departure.
[4] In averment it is stated on the pursuer's behalf that at the time of the incident, she -
"was standing at the side of her bus, towards the back of the bus, waiting her turn to board when she was violently and without warning pushed from behind by the Second Defender. As a result her face hit against the side of the bus with considerable force, causing the injury and damage hereinafter condescended upon."
Those averments are proceeded by an averment that there was -
"frequently pulling, pushing and jostling, among the pupils as they made their way to the buses and boarded them. Sometimes such behaviour went beyond mere horseplay to being quite reckless and occasionally violent."
[5] Consistently with that factual assumption of an incident occurring in the course of the boarding of a bus various averments are made by the pursuer of alleged deficiencies in the system or arrangements for boarding buses and the supervision of those arrangements. In the event, however, it is apparent from the pursuer's own evidence and all the other evidence in the case that the incident in issue has really little to do with arrangements for school transport or the boarding of buses. The essential, undisputed circumstances were that having been dismissed from her class and made her way to the playground area, the pursuer was not endeavouring to board her bus but, with other friends, was simply conversing with the male occupants of the rear of a bus through the sliding opening portion of a window near the rear wheel of the bus. While thus engaged, her face came into forcible contact with the side of the bus with the result that she suffered dental injury. In immediate mechanical terms it is also not disputed that the second defender performed a rôle in that episode in the sense that the defender made physical contact with the pursuer whereby she came into contact with the vertical surface of the stationary bus. Just as the pursuer was not endeavouring to board a bus, neither was the second defender endeavouring to board the bus, his bus being in a different location, in Oakland Crescent.
[6] While there is thus agreement that, putting it in neutral terms, the second defender came into physical contact with the pursuer and in consequence of that contact the pursuer came into contact with the stationary object consisting of the vertical wall of the bus, parties are divided as to the nature, origins and categorisation of the physical contact between the pursuer and the second defender:
- For her part, the pursuer now contends that the second defender effectively assaulted her by deliberately and violently pushing her against the side of the bus.
- For their part the first defenders, in light of the evidence available to them and the results of the school's contemporaneous investigations adopt the standpoint that second defender did not push the pursuer with any malicious intention but simply made jocular physical contact with the pursuer, producing ,however, unfortunate results.
- For his part, the second defender contends that while he came into contact with the pursuer, he did so as a result of his having first been pushed by another scholar at the Academy.
Accordingly the first issue in the case involves a consideration of the evidence regarding the immediate events leading to the pursuer striking her face against the wall of the bus and, particularly, whether she was pushed as part of a deliberate violent action towards her by the second defender.
[7] In her evidence the pursuer deponed that, along with Catherine McDuff and Romay Gallagher, who travelled on buses different from that of the pursuer, she stood for some minutes chatting through the window of the bus with some of its occupants and in particular an older boy, Andrew Christie. She testified that at one point Andrew Christie had pointed behind her and on turning round she saw the second defender running in her general direction. She then reverted to facing the bus and Andrew Christie and thereafter she was pushed with the consequence that her face struck the window of the bus. In the course of examination in chief, she stated that she had turned round to face the bus in order to protect herself. The pursuer maintained that it was impossible that the second defender could have struck her by mistake or accidentally. She contended that it was impossible that the second defender had himself been pushed and thus struck her unintentionally. On being questioned by her counsel as to the basis for those views, the pursuer indicated that she held those views because of the force or violence with which her face struck the bus and because she had observed no one else in a position to have pushed the second defender.
[8] The picture sought to have depicted by the pursuer in her evidence in chief of her being deliberately and violently pushed by the second defender against the bus may be compared with her account of the matter delivered in its immediate aftermath to two members of the staff of the school.
[9] Mrs Duncan, principal teacher of home economics, stated in her evidence that she had seen something of the incident itself from her classroom, in which was also present at the time another member of staff, Mrs Halsey. The pursuer having been brought into the home economics building by Mrs Halsey she was seen by Mrs Duncan who gave unchallenged evidence that the pursuer repeatedly said words to the effect "he didn't mean it". The pursuer thereafter received attention from the school nurse, Mrs White. In her evidence Mrs White deponed that in the course of attending to the pursuer's injuries, she had asked the pursuer what had happened and whether what had occurred had been an accident. According to Mrs White, the pursuer responded to the effect that "he" used to be her boyfriend; he had shouted "hi Kim" and she felt his hand on her back; she then lost her balance and fell forward. Although questioned closely concerning her recollection of the precise words used - for example whether it was the back or the shoulder on which the pursuer stated she had felt a hand - Mrs White was clear in having formed the impression from the pursuer's account that the incident was plainly an unfortunate accident and there was no question of the pursuer having been deliberately and violently pushed against the bus. In her report, prepared on the following day, Mrs White stated -
"a boy pushed her from behind, she didn't see him coming so she was unprepared, lost her balance and fell onto side of bus".
[10] In cross-examination, and indeed to an extent in chief, the pursuer did not dispute having given an inconsistent account to Mrs White and Mrs Duncan. Although she, perhaps not surprisingly, could not remember more precisely what she had said to them, she agreed that she had not attributed any blame to the second defender. She also accepted in the course of cross-examination that having seen the second defender coming towards her she had expected that he might give her a friendly pat on the back. He and she were friends. Some time previously they had been "boyfriend and girlfriend" and although that was no longer the case at the time of the incident they had remained on good terms. The pursuer also accepted in cross-examination that it was possible that the second defender had in turn been pushed by someone else.
[11] Given that the pursuer's contemporaneous position had been that no fault or blame was to be attached to the second defender, the question why her account of matters should have changed was naturally prompted. In response to that question the pursuer initially deponed in chief that the second defender was a friend, who was getting bullied, and she did not wish to get him into trouble but she had changed her mind and gone to her solicitors when he had laughed at her. While that was the pursuer's initial explanation it thereafter emerged that the impetus to consult solicitors and to raise these proceedings in the pursuer's name had come from her mother, who had remarked that dental treatment was going to cost a lot of money. The pursuer indeed conceded to counsel for the second defender that she knew that in order to recover money in these proceedings, she would have to alter the account which she had previously given at the time of the incident and that was in fact what she had done.
[12] It is convenient next to refer in summary to the evidence of others present at the time of the incident. Counsel for the pursuer tendered the evidence of the two girls with whom the pursuer was standing near the bus; two of the male occupants of the bus; and she also called the second defender as a witness.
[13] The first of those girls was Catherine McDuff. She deponed that she had been standing at an angle to the bus and to the pursuer. Rather out the corner of her eye, she observed the second defender coming up as if to speak with them. The second defender than appeared to lose his balance and stumbled against the pursuer causing her to fall and strike her head against the bus. On the basis of what she had observed, Miss McDuff excluded the possibility of the second defender having intentionally pushed the pursuer against the bus.
[14] In her evidence in chief Romay Gallagher stated that the second defender had pushed the pursuer against the bus by placing both hands on her shoulder. However, she also stated, particularly in cross that, like the pursuer, she too had been standing facing the bus and her first awareness of matters was when the pursuer fell forward coming into contact with the bus.
[15] Andrew Christie (with whom the pursuer said in evidence she had been talking) stated that he was on the bus looking towards the pursuer and her friends. He was conscious of the pursuer coming into contact with the bus. The accused was behind her. He did not see the second defender push the pursuer. He thought it could have been that the second defender had given the pursuer a friendly pat and thus that the event had been or could have been an accident. Mr Christie agreed that it was possible the second defender had been pushed by somebody else but he could not say one way or the other.
[16] Wayne Cochrane stated in evidence that he was seated on the bench seat running along the back of the bus with three other boys. According to him, the second defender came up and pushed the pursuer from behind causing her to fall forward and to strike the window of the bus. Wayne Cochrane denied that the push could have been accidental or that the second defender could himself have been pushed by another.
[17] In so far as the actual incident in the playground is concerned, the second defender's position, in summary, was that he was hurrying from school towards his bus in Oakland Crescent. To do so, he passed a group of people which included the pursuer and Catherine McDuff. As he was doing so, someone pushed against him with the result that he fell into the pursuer who in turn fell against the bus. According to the second defender it was his chest which struck the pursuer he having, he said, put out both his hands to stop himself from falling against the bus. The injury sustained by the pursuer produced a lot of blood and those on the bus began to make threatening gestures at him. The bus driver came out of the bus and spoke to him. He was told by the bus driver that he should leave. For these reasons and also because he in any event required to get the bus to his home in Burrelton, he then left the scene.
[18] As already indicated, a further eyewitness to the incident who was called on behalf of the first defenders was Mrs Duncan, whose classroom on the ground floor of the home economics wing, next to the exit whence the second defender left the school buildings, allowed a direct view of the area on which the Scone buses were parked. Mrs Duncan's evidence was to the effect that having dismissed her class, she was in the corner of her classroom next to the window giving onto the area in question when she was aware, out of the corner of her eye, of a pupil running from the exit towards the buses and of a small group of pupils standing beside the rear of a bus. Mrs Duncan was aware of the pupil (to whom she referred as "Chris" - the second defender - but did not identify him as such at the time) raising his hand in what she described as a "hi ya gesture" and in doing so he made contact with the pursuer whom she saw fall against the bus, the impact causing a noise which she heard. Mrs Duncan's clear impression was that the gesture which she observed was not malicious. She then invited her colleague, Mrs Halsey to go outside and to bring the pursuer into the building. When the pursuer was brought into the building she then heard the pursuer say "he didn't mean it".
[19] A further chapter of evidence relates to what occurred at the pursuer's home on the evening of the day of the incident.
[20] In her evidence the pursuer's mother deponed that she was in Blair Atholl when she received news of her daughter's injury and only arrived home at about 6pm. On seeing the injuries which her daughter had sustained, she became "quite hot tempered" and wished to have the police involved but was dissuaded from doing so by the pursuer. Mrs Hunter accordingly telephoned the second defender's home and spoke with the second defender's father, who she said, at that time did not know of the incident. She wished him and the second defender to come to her home but the second defender's father was reluctant to do so. According to Mrs Hunter he only agreed to do so when she threatened to call the police. In the event, the second defender and his parents attended at the pursuer's home later that evening. According to Mrs Hunter, when confronted with matters the second defender initially "hummed and hawed" but eventually said that he had been running and admitted that he had pushed the pursuer with both hands. Mrs Hunter denied that the second defender had ever said that he himself had been pushed.
[21] Evidence about this meeting was also given by the second defender's parents, Mr and Mrs Gellatly. Mr Gellatly indicated that when he received the telephone call from Mrs Hunter his wife was not at home and he indicated to Mrs Hunter that they would get back to her when Mrs Gellatly returned. Mr Gellatly stated that he thereafter spoke with the second defender, he (Mr Gellatly) being "not pleased" about matters, and the second defender indicated to him that he had been jostled. In their evidence, both Mr and Mrs Gellatly stated that when they arrived at the Hunter home, Mrs Hunter was initially angry and their son was clearly nervous and frightened. He gave an explanation that he had been coming out of the school; there were other boys around him; he had been pushed against as he was passing the pursuer; and he demonstrated how he had tried to stop himself falling on her and the bus by putting out his hands. The pursuer was not present during the giving of this explanation. After the second defender had provided that explanation, Mrs Hunter had indicated that she was satisfied with it. She then called the pursuer down and the pursuer and the second defender went out together to the pursuer's room while their respective parents had a general conversation over coffee.
[22] In my assessment of the evidence relating to the incident in question I have come to the conclusion that the weight of the evidence does not support the contention now advanced by the pursuer that the second defender effectively assaulted her by deliberately pushing her with substantial, intended violence.
[23] By way of a preliminary observation, there is no apparent reason wherefor the second defender would wish to commit such an act. Despite the averments made on her behalf at page 7E of the Closed Record to clear contrary effect, the pursuer accepted that at some time prior to the incident she and the second defender had been "boyfriend and girlfriend" and she agreed that they continued to be good friends at the time of the incident. It may further be mentioned that Andrew Christie, who struck me as a witness doing his best truthfully to recollect and describe what he had seen - which did not include a violent attack - also indicated that it would be an odd choice of time and place to carry out such an act of deliberate violence.
[24] In evaluating the evidence given by the pursuer I consider that importance must be attached to what was said by her immediately after the accident. I accept the evidence of Mrs Duncan and Mrs White, and indeed the pursuer herself did not dispute that when she had spoken to them she had not sought to blame the second defender for what she described to them as a simple accident. I find unpersuasive the pursuer's explanation that she had given that - now allegedly false - account merely to protect the second defender and I am satisfied that the pursuer's later change of approach was prompted by maternally inspired pecuniary motives. While a change induced by such motives need not be wholly determinative of matters, it does, in my view, mean that one should look very carefully for proper independent support of the altered account. Having done so, I do not find such support.
[25] Of those present at the time, the only two witnesses potentially supportive of the pursuer's current contention are Romay Gallagher and Wayne Cochrane. On an examination of the former's testimony it appears to me that - as was pointed out by counsel for the defenders in their submissions - given the position in which she was standing, facing the bus, she was unlikely to have seen the immediate events preceding the pursuer's unfortunate fall against the bus and her conclusion was largely reached on the basis of the consequences of the pursuer's fall in terms of the injuries sustained. While it has to be said counsel for the pursuer also alluded at times in the course of her submission to the injuries received, there was no medical evidence to the effect that those results could probably only be produced by a deliberate violent push and not simply by a fall against the side of the bus. So far as Wayne Cochrane is concerned, I have to say that he did not impress me as a reliable witness. His evidence contained inconsistencies. Having maintained that he was seated on the back seat of the bus, he yet claimed to have been speaking to the pursuer through a window of the bus which was identified by the pursuer as being some distance forward of the rear bench seat. While at one point the stated that as the second defender approached the pursuer, boys were running in front of and behind him at another he was adamant that there was no possibility of the second defender having been pushed because there was no one near him. While he denied ever having spoken with the pursuer concerning the case, he recognised that she was a friend of his and he thereafter accepted that he in fact knew her version of events. He conceded in due course that he had no liking at all for the second defender. In light of these matters and his general demeanour in the court room, I do not feel able to place reliance on his evidence in preference to the other pertinent evidence.
[26] That other pertinent and contrary evidence includes the testimony of Charlotte McDuff and the evidence given by Mrs Duncan, and also Andrew Christie, indicative of a friendly or jocular contact which regrettably produced unfortunate results.
[27] In these circumstances, I do not consider the pursuer to have established the deliberate and violent pushing of her against the bus by the second defender for which she contends. Whether one labels that deliberate violent pushing as "assault" or the perhaps more fluid "violent horseplay" - both terms being employed in the pleadings for the pursuer - is perhaps not material for the present.
[28] The second defender's position in these proceedings is, of course, that the unfortunate physical contact between his body and that of the pursuer resulted from his having initially been pushed or jostled by another pupil. Counsel for the second defender tendered as a witness, a Christopher Cunningham, who at the time was in his third year of secondary schooling but was later a member of the Cadet Force at a time when the second defender was also a member of that Force. Mr Cunningham claimed to recollect his having been leaving the school on the day of the incident when he heard someone shouting "who pushed me, who pushed me, who the fuck pushed me". Cunningham maintained that it was the voice of the second defender. He further stated that he told no one other than his brother, Richard of this event until eventually approached by solicitors acting on behalf of the second defender.
[29] I have little hesitation in rejecting Cunningham's evidence as, at the least, unreliable. Even if it were the case that Cunningham had heard such words being uttered, I find it hard to believe that he was then sufficiently acquainted with the second defender's voice to be able to identify the second defender as being the utterer. Moreover, I find it impossible to believe that he would have found the uttering of those words so remarkable as to warrant mention, as he claimed, to his brother that evening. The peculiarity of his being approached by solicitors without, as he claimed, having made any further mention of the matter, is in my view self-evident.
[30] On the other hand I accept that from an early stage, the second defender maintained that he had been pushed. That was the account given to his parents and, on their evidence, to Mrs Hunter. I formed a favourable impression of both Mr Gellatly and Mrs Gellatly, particularly the latter, and I accept the substance their account of the proceedings on the evening of 29 April 1997. In so far as there is conflict between their testimony and that of the others present at the pursuer's home on that occasion, I prefer the account given by Mr and Mrs Gellatly. However, the fact that the second defender contended that evening and subsequently that he had himself been pushed does not, in my mind, overcome the lack of support for the second defender's account in the other evidence in circumstances in which one would expect to find some support. I am inclined to think that, appreciating that in mechanical terms he had caused significant injury to the pursuer, that the matter was being investigated and pursued by the adult world in the shape of a telephone conversation from the pursuer's mother to his father and that his father was not pleased, the second defender reacted in the way in which a nervous and anxious 12 year old might react by simply attributing everything to the act of another rather than endeavouring to grasp a more sophisticated concept of personal responsibility. Having thus initially adopted the account of his having been pushed, the second defender has felt bound to remain with it, perhaps to the extent of now being partly persuaded of its truth and validity, although of that last matter I am not certain.
[31] In these circumstances, reverting to the three categorisations of the event which I mentioned above [par 6] the result at which I arrive involves the rejection of the contentions of both the pursuer and the second defender. In my view, on the balance of probabilities, the action of the second defender which led to the pursuer's falling against the stationary object constituted by the bus was a physical contact to her upper body which was not maliciously intended but which had the result of her losing her balance and falling against the bus with the unfortunate and regrettable consequences in terms of the injuries averred to have been sustained. I would also add that while I do not consider the outcome of the school's investigation to be a factor directly to be taken into account. I am fortified in my conclusion by the fact that the investigation carried out more contemporaneously produced a conclusion broadly similar to my assessment of the evidence tendered before me.
[32] I turn now to consider the grounds of liability pled against the defenders.
[33] The case made by the pursuer against the first defenders is largely predicated upon the factual hypothesis that she was violently pushed or assaulted in act of "violent horseplay". Since I have not found that she was so assaulted in an act of violent horseplay, the factual hypothesis to that extent disappears. It is also part of the case as pled against the first defenders that it is averred that there was a prior history of pupils' behaviour going beyond mere horseplay to being "quite reckless and occasionally violent".
[34] While there was a general acceptance amongst those witnesses who had been pupils at the Academy that the behaviour of the school children when leaving the school could be boisterous - a description with which the rector, Mr Waite agreed - I did not find in the evidence anything from which one could properly conclude that the behaviour of the pupils of Perth Academy was other than what one might normally expect of a secondary school. Although it was recognised that on occasions fights might take place, the witnesses generally recognised that such occasions were rare. It may also be noted that all of the student witnesses agreed that the school had, and enforced, rules of conduct and that fighting, and by implication an assault of the kind claimed by the pursuer, were matters which were treated seriously. The pupils' impression was confirmed by Mrs Duncan who stated that fighting was regarded seriously and that if there were a violent attack by one pupil on another, it would be a matter which would fall to be dealt with by the Board of Management and likely to result in an exclusion.
[35] In her pleadings, against the averred background of behaviour going beyond horseplay, the pursuer alleges that the first defenders were in breach of their duty of care towards her in the particular respect in that they failed in what is claimed as a duty "to provide a system of supervision by adult persons of pupils boarding buses with a view to preventing violent horseplay". It is further averred that had such a system "been in place prior to said incident the behaviour of pupils would have been controlled so that violent horseplay was prevented". The summons also alleges that the first defenders were in breach of certain regulations but counsel for the pursuer expressly disclaimed any invocation of that statutory case.
[36] No averments are made by the pursuer concerning practice at other schools in similar circumstances. In relation to the arrangements for dismissal of classes at Perth Academy, counsel for the pursuer led evidence from the rector. He explained that some years prior to the incident, arrangements had been made, in consultation with the police and the bus company, to ensure that the Scone (and other) buses would arrive and be parked sometime in advance of the dismissal of the classes, thereby avoiding any need for pupils to queue up to await the arrival of a bus. Given that the buses were thus present and stationary prior to the children being released from class, the movement from classroom to bus was in essence no different from the movement from one door in the school to another door in the school, an activity which occurred continually without express supervision. Further, the bus drivers were all present in the buses to supervise the actual boarding. They had the power to report pupils who misbehaved and to remove their bus passes. Of the bus departure points, the main entrance in Viewlands Road involved the children boarding buses on what was a relatively busy road, a feature which was absent in the case of the Scone buses which left from within the playground. In the case of the Scone departure location there would, in normal course, be a number of teachers crossing in the area in order to reach their cars in the car park. The rector also explained that there were in fact twenty six exits from the school buildings and six separate exits from the school grounds, which extended over some twenty acres. He would be present in the area from which the Scone buses departed on occasions, the frequency of which would vary but might be approximately once per week, just as he would be present in other areas of the school on other occasions. He would also take the opportunity of observing what was happening in the playground from a window in the school. With the buses being present and stationary prior to dismissal, the situation in the interval between the dismissal of the classes and the departure of the buses was not dissimilar from other times of the day when the pupils were not in their classes but round and about the school premises, such as the break periods or at lunch time. In common with other secondary schools, formal supervision of children in the playgrounds at such times was not provided.
[37] In the course of her submissions on behalf of the pursuer Miss Coutts submitted that the responsibility of an education authority did not end with the ringing of the final school bell but extended to the arrangements for the departure of the pupils from the school premises. She submitted that the performance of that duty required the provision of reasonable supervision. Reasonable supervision, she said, required the presence of an "adult person" to supervise the area of the Scone buses departure point and thereby exercise what she described as a "quelling effect". The adult person would require to be present constantly during the period between the final bell and the departure of the buses, while pupils were in the area, and that person would have to be visible to the pupils. The occasional presence of the rector, or the emergence at irregular intervals of teachers making their way to the car park was she said not sufficient. Counsel for the pursuer referred to Marr & Marr on Scots Education Law paragraph 16-01 - 16-06; Greens Scottish Education Manual, paragraph 3.1.9.1.3; Gow v Education Authority of Glasgow 1922 S.C. 260; Ward v Herts County Council [1970] 1 W.L.R. 356; Beaumont v Surrey Council (1968) 66 L.G.R. 580 and Wilson v Sacred Heart R.C. School [1998] 1 F.L.R. 663.
[38] Mr Lake for the first defenders submitted that the duty contended for, namely a system of constant supervision such as to control behaviour in such a way as to prevent horseplay, was impossible, impracticable and unreasonable. It was not possible to prevent all horseplay. Thus, among other witnesses, the pursuer and the second defender had both agreed that horseplay did on occasion occur in a classroom even in the presence of a teacher. It was also impracticable in that, given the number of pupils and the number of exits and the extent of the grounds as described by the rector, to provide supervision of all children in the course of leaving class and proceeding to the school exits would require the presence of virtually all of the teaching staff dispersed over various points. But to get to those points in advance of the children, the teachers or supervisors would need to leave the children unsupervised in the classroom. The alternative was that the first defenders would need to engage some forty or fifty other staff for the period of say fifteen minutes while the children were leaving school. It was unreasonable in that the Academy was a secondary school with pupils of an age at which they were learning to take responsibility and it was not conducive to the welfare of the school children to turn a playground into a prison, watched over by a series of supervisors. Further, there was no evidence of any particular problem in this playground area at this time and, as the rector had testified, during his fifteen year period of service at the school no equivalent incident before or since the present one.
[39] Moreover, submitted counsel for the first defenders, the authorities did not support the existence in law of a duty of the scope contended for by counsel for the pursuer in her submissions. Effectively the pursuer was contending for that standard of supervision for which the parent in the case of Gow v Glasgow Education Authority had contended when the parent in that case claimed -
"had the defenders provided a servant or servants to watch over the conduct of the children in the said room on the said occasion, the said Donald Gow would not have sustained the aforementioned injuries, as such servant would have been able to control the children and prevent interference of one with another ...".
That proposition had been rejected by the Court. Similarly in Ricketts v Erith B.C. [1943] 2 A.E.R. 629, 631 the defendant education authority had been held not to be at fault in not arranging continuous supervision of the playground of a primary school- during playtimes. In Wilson v Sacred Heart - which was also a primary school, the Court had held the school not to be in breach of duty by not having supervision of the children as they left the school building to go to the school gates. By way of a further illustration, counsel referred to Etheridge v Kitson and East Sussex Council [1999] Ed.C.R. 550. Counsel for the first defenders also referred to the decision of the Sheriff Principal in Ahmed v City of Glasgow Council 2000 S.L.T. (Sh. Ct.) 153, in particular the passage at 155K in which the Sheriff Principal noted that where failure to maintain supervision of school children was alleged, the well recognised rule in that situation was the rule contained in the judgment of the Lord President in Morton v Dixon 1909 S.C. 807 namely -
"to show that the thing which he did not do was the thing which was commonly done by other persons in like circumstances, or - to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it."
Neither branch of that test was satisfied in the present case.
[40] In my opinion, the submissions of counsel for the first defenders are to be preferred. The contention advanced by counsel for the pursuer - going I think somewhat beyond what was pled as the duty - was that there ought to have been a "adult person" constantly present and visible to, presumably all, the school children in at least the area of the Scone buses. Given the extent of the area and the presence of the buses, it is difficult to see that this criterion could be satisfied except by the provision of a number of supervisors. Further, since there was no evidence that this particular time and area posed special problems not present at other times or locations in the school (and indeed the evidence led by the pursuer from the rector was rather to the contrary namely, that this area had a low priority) the same duty of ever-present supervision would require to be performed elsewhere as the children were leaving the school through various exits. The cases to which I was referred do not support but on the contrary rather negative the existence of any duty on an education authority to provide such all pervasive supervision. It is not suggested in the pleadings that there is any practice among secondary schools to make such provision nor can it, in my view, be said that the omission of such extensive supervision was obvious folly.
[41] Further, if one has regard to the actual terms of the duty claimed by the pursuer in her pleadings it is, as Mr Lake pointed out, evident that certain supervision was provided. The boarding of buses was supervised by the drivers. Teachers leaving the school passed across the area at (from the pupils' standpoint) unpredictable moments. The rector was there on rotation and, as he also pointed out in his evidence, a special care assistant would be present in the area to attend the transport arrangements of children with special needs.
[42] Given that level of presence of adults in the relevant area of the playground, I do not consider that it can be said that the presence of another adult, even a teacher, somewhere in the area with supervisory duties would have made a difference in the present case. Even assuming a deliberate assault by the second defender on the pursuer, the consensus amongst the former school children was to the general effect that the presence of a teacher, additional to those liable to emerge from the building to go to their cars, would have made little difference had a pupil been actively intent on attacking another. With that assessment I tend to agree. It follows even more so that on the facts as I have found them the presence of additional supervision could have had no rôle in preventing the incident, which did not take the form of a deliberate attack.
[43] For all these reasons I consider that the case against the first defenders is unsound.
[44] I turn next to the case against the second defender. It is pled in these terms:
"Said incident was also caused by the fault and negligence of the second defender. He had a duty to take reasonable care for the safety of his fellow pupils including the pursuer and to avoid exposing them to unnecessary risk of injury. He had a duty not to assault the pursuer. He knew or ought to have known, because it was obvious, that to push the pursuer violently into the side of the bus was likely to cause her injury."
It appears to me that the pleader has perhaps not clearly distinguished whether the allegation is one of assault, or negligence. The factual averments advanced as respects the second defender are more appropriate to the former and in her submissions, counsel for the pursuer primarily proceeded on the factual basis of a violent assault. Since I have concluded that such a factual base has not been established, her submissions to that effect must fail.
[45] Counsel for the pursuer also submitted shortly that if the second defender had pushed the pursuer with the foreseeable result that she would suffer injury, the second defender would be liable. She did not offer any authority on the optic through which that foreseeability and hence that responsibility was to be viewed or judged. Counsel for the pursuer also submitted that if, by reason of his age, and the nature of his contact with the pursuer, the second defender were not liable in negligence to make reparation for the pursuer's injury, the school must be liable. In elaboration of this submission, which appeared novel to me, counsel for the pursuer submitted that if a child were not in law responsible for damage sustained through his actings by reason of the his inability to appreciate the consequences of his actions, the parents assumed vicarious responsibility and accordingly, the school being in the position of a parent, in the event that the second defender were not responsible decree must pass against the first defenders. No authority was put forward for these contentions which I do not regard as being sound.
[46] For his part, Mr Hayhow for the second defender referred me to Mullen v Richards [1998] 1 W.L.R. 1304 from which it was clear that whether an acting on the part of a child is to be regarded as negligent, thereby giving rise to an obligation on him to make reparation, is to be viewed from the perspective of what might reasonably be expected of a child of similar age and experience.
[47] In my view, the submission of counsel for the second defender on this aspect of the case is correct. It may also be observed that in Gow the activity complained of involved one boy jumping unexpectedly on the back of the boy who was unfortunately injured. The Lord Justice Clerk observed that they "were just playing as children will, and blame can hardly be attributed to him who caused the unfortunate results which happened."
[48] Given the factual conclusion which I have reach concerning the nature and characterisation of the incident and looking at the matter as best I can through the eyes of a twelve year old, I consider the present case to come within the ambit of what was described by the Lord Justice Clerk in Gow, namely the sort of activity in which a twelve year old might naturally engage. It is, of course, regrettable that in the event unfortunate consequences ensued but in my view, the second defender is not to be held responsible in law for those injuries.
[49] I shall accordingly uphold the second and third pleas-in-law for each defender and grant decree of absolvitor as respects both defenders.