Scottish Sheriff Court Decisions

TANVEER AHMED v. GLASGOW CITY COUNCIL [2000] ScotSC 20 (26th July, 2000)

A4793/98

GLASGOW, 26 July 2000.

The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor complained of dated 11 February 2000; reserves meantime all questions of expenses.

This is an action of reparation brought by a school pupil who was injured as a result of an incident which took place in a classroom on 18 June 1996. He suffered a serious injury to his eye when it was struck by a rubber thrown by a fellow pupil. The pursuer avers that at the time the teacher had left the classroom. According to his averments the teacher was absent for some 10 minutes. The incident had occurred about five minutes after the teacher left the room.

In this action the pursuer seeks to recover damages from the defenders as Education Authority. Following debate the sheriff properly repelled the pursuer's first plea in law which purports to formulate a case of fault against the defenders, since it is clear that the case is based solely on their vicarious liability for the actings of the teacher who was in charge of the class. In that respect the pursuer's averments of fault directed against the teacher are as follows:

He goes on to aver that the teacher was absent for approximately 10 minutes and that a class of 3rd year pupils left unsupervised for that period of time was likely to become unruly. He then makes particular averments that the rubber was thrown by one Andrew Carberry who "had a history of disruptive behaviour". It is said that "the said teacher knew or ought to have known that Andrew Carberry was unruly". There are further averments that the class had been left unsupervised in the pottery room on approximately five occasions during the school year. It is said that on these occasions "clay was thrown about by pupils and particularly at the ceiling where it stuck. The pupils involved were Andrew Carberry, Christopher Elliott, Brian Kyle and Stuart Beattie".

The learned sheriff dismissed the action. He held under reference to Gibson v Strathclyde Regional Council 1993 SLT 1243 that there were no "averments of practice or of particular circumstances from which it may reasonably be inferred that" a teacher exercising the standard of care to be expected of him would not have left the class unsupervised for 10 minutes. He further noted that in Scott v Lothian Regional Council 1999 Rep LR 15 Lord Maclean had proceeded upon the basis that the test to apply in determining whether negligence had been established on the part of a teacher is whether he or she had been proved to be guilty of such failure as no teacher of ordinary skill would be guilty if acting with ordinary care. That is the test derived from Hunter v Handley 1955 SC 200. The sheriff considered that the pursuer's pleadings were devoid of any proper formulation and application of the Hunter v Hanley test. The sheriff acknowledged that a court should be slow to dismiss a reparation action as irrelevant unless the circumstances were clear but nevertheless felt bound to do so.

I am not persuaded that I should interfere with the sheriff's decision. The first criticism which was advanced was that he had erred in holding that the Hunter v Hanley test was applicable to the circumstances. As formulated the submission was that there was a distinction between educational welfare of children and physical welfare and that a test derived from Hunter v Hanley was of relevance only to the former. It was appropriate in the case of Scott v Lothian Regional Council, where Lord Maclean was dealing with allegations that guidance teachers had failed to give appropriate support to a pupil. The proper test, it was maintained, when it came to questions of physical well being of children was that a teacher's duty was to take such care of his pupils as a reasonably careful and prudent parent would take of his or her own children. In support of that argument reference was made to the judgment of Mantell J in Wilson v Governors of Scared Heart School, 1998 1 FLR 663 at 664D; Ricketts v Erith Burgh Council, 1943 2 AER 629 (Tucker J at 631D) and Camkin v Bishop & Another, 1941 2 AER 713, in particular the judgment of Lord Justice Goddard. In addition Counsel for the pursuer and appellant very properly referred me to Beaumont v Surrey County Council, 1968 66 LGR 440. That was a case involving physical injury to a child, and at p 585 Geoffrey Lane J (as he then was) made the following observations:

With those observations I respectfully agree. The concept of the "care of a reasonably prudent parent" relates to a standard of care and is a helpful practical guide as to what one may expect in cases, as Lane J put it, involving individual instructions to individual children. It should not, in my view, be invariably recited without regard to the circumstances in every case which involves the actings of a school teacher. In Wilkinson & Norrie in Parent and Child at para 8.24 it is stated that:

The authors go on to point out that:

It is interesting to note that in his passage dealing with persons professing special skills in his work on Delict (2nd ed. p 1062) Professor Walker does not mention the standard of care to be expected of a reasonably prudent parent. What he says is this:

In my view that passage accurately sets out the general nature of the duty. There may be cases where the practical consequence is to require the teacher to act with the same degree of care as a reasonably prudent parent, but that situation does not in my view arise when one is talking of supervision of a class of 25 to 30 adolescents. I see no benefit in attempting to formulate a test involving what a prudent parent would or would not do in that type of situation. In these circumstances I reject the contention that it is necessary to test what took place in this case by reference to the actings of a reasonable parent.

Whether it is appropriate, or not, to apply what is generally known as the Hunter v Hanley test is more debatable. As is well known that test has been widely adopted for use in a variety of situations involving the deployment of professional skills. I have little difficulty in acknowledging the validity of it in somewhat esoteric situations such as the degree of skill to be expected of guidance teacher in counselling and supporting a child as Lord Maclean was concerned with in Scott v Lothian Regional Council. The starting point in any case where the Hunter v Hanley principle is founded upon is a deviation from ordinary professional practice, and it accordingly follows that the test is generally only relevant to situations which involve the deployment of professional skills. A doctor who neglects to repair a worn carpet in his surgery thereby causing a patient to trip is not to be held at fault on the basis of Hunter v Hanley, and it is plain that a formulation of fault derived from that case should not be regurgitated whenever a case against a professional person is pled. In some instances it may not be altogether clear whether the act or neglect complained of is set in the context of deployment of a professional skill, and the present situation where one is considering supervision of a class rather than the imparting of knowledge to it may be such a case. In that situation it may not be appropriate to use the Hunter v Hanley "formula" but to simply use "the ordinary language of the law of negligence". Be that as it may, I do not consider that the sheriff's comments that the pursuer's pleadings are bereft of any formulation of the Hunter v Hanley test has ultimately led him astray. It is without question that the teacher in this case owed the pursuer a duty of care. What is alleged is a fault of omission - failure to maintain supervision of a class - and the well recognised rule in that situation is that contained in the judgment of Lord President Dunedin in Morton v Dixon 1909 SC 807 at 809:

The pursuer in the present case makes no averments of practice by other persons in like circumstances, a matter which was readily conceded by counsel for the appellant, and I think that was what the sheriff alluded to in his reference to Hunter v Hanley. What counsel sought to persuade me of was, in effect, that there were sufficient averments to bring this case within the second category of Morton v Dixon, namely that the particular propensities of this class for horseplay whenever a teacher's back was turned was sufficient to make it negligent to leave them unsupervised.

Counsel's proposition was that the pursuer's averments if proved would be sufficient to justify a finding that in relation to this particular class a teacher would not leave it unsupervised "for any material time". He acknowledged that it would be requiring the impossible to suggest that a class should never be left unsupervised whatever the circumstances. The averment that the class should not have been unsupervised "for any material length of time" he submitted acknowledged the lack of reality of such an absolute duty but was sufficient to entitle the pursuer to lead evidence that to leave this class for any period which as he put it was not "de minimis" would be unreasonable.

I have to say that I do not find that argument compelling. Read as a whole the pursuer's averments appear to suggest that it was negligent to leave this class unsupervised for a period of 10 minutes and there is consequently some doubt as to whether the teacher could have responsibility for an incident which took place after five minutes. On any view I consider that the use of the expression "for any material length of time" is vague and lacking in specification to a material extent.

I would not be inclined, however, to dispose of the case on that point which might be viewed as somewhat technical, because in reality I consider the problems which face the pursuer to be more fundament. Proceeding on the basis that his case is that it was negligent to leave this class unsupervised for five minutes (being the point in time when the incident occurred), fault could only be established if it were shown that something was more likely to happen then rather than at some earlier stage. If it were the case that pupils in the class were known to have violent propensities, and something violent happened after five minutes, I can see that knowledge of those propensities might give rise to a duty not to leave them unattended for that length of time. But the incident which occurred here cannot on any reasonable view be regarded as unusual in classroom life. It could have occurred whenever the teacher's back was turned, let alone when he left the room. If the incident could have happened at any time, why was it "so obviously...folly" to have left the class for five minutes? Because of the nature of the act involved I have the gravest doubts as to whether the pursuer's case could ever meet the second test of Morton v Dixon.

Counsel for the appellant founded on Jacques v Oxfordshire County Council & Another, 1967 67 LGR 440. That case involved an incident on a school bus which was supervised by a prefect. The issue was whether there was inadequate supervision and the court concluded that "since there was no evidence...that the bus passengers were particularly boisterous and undisciplined it was perfectly reasonable on the part of the local education authority to leave the supervision of buses to the children, that is to say senior children appointed as bus perfects" (Waller J at p 444). It was argued that there were sufficient averments to entitle the present pursuer to show that the class was "particular boisterous and undisciplined". Jacques, however, was in essence a case concerning the level of supervision. It appears to have been accepted that in certain situations supervision by an adult rather than school perfects would have been appropriate and the question was whether the particular bus load of pupils required the higher level of supervision. The present case, however, is about absence of supervision in a situation where it is accepted that constant supervision cannot be expected. It must also be acknowledged that in the absence of supervision there will be boisterous behaviour. The expression "particularly boisterous" I regard as somewhat vague and I am inclined to think that there would be some practical difficulties in determining whether a group of 14 year olds fell within that category. Even if this class did contain "particularly boisterous" elements I do not however see that this creates "special knowledge of a risk" which in effect was what counsel for the pursuer argued for. One gets back to the point that the incident which occurred was not abnormal and could have occurred virtually at any moment. There was nothing "special" about it. I agree with the view of the sheriff that the pursuer's averments seek to impose an unreasonably high standard upon the teacher.

Along with the sheriff I recognise that one should be slow to dismiss a reparation action as irrelevant except when there are clear circumstances entitling one to do so. That power must however be exercised in appropriate cases. It is no function of the court to allow dubious claims to go forward in the prospect that the defenders will find it economic to settle. There is, in my view a responsibility not to encourage pursuers to proceed to a disappointing outcome following proof. In all the circumstances I am not disposed to interfere with the sheriff's decision.

I have reserved all questions of expenses in accordance with the wishes of parties.