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Cite as: [1955] UKHL 2, [1955] 1 All ER 565, [1955] AC 549

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JISCBAILII_CASE_TORT

Die Jovis, 17° Februarii 1955

Parliamentary Archives,
HL/PO/JU/4/3/1028

Lord
Oaksey

Lord
Goddard

Lord Reid

Lord
Tucker

Lord
Keith of
Avonholm

HOUSE OF LORDS

CARMARTHENSHIRE COUNTY COUNCIL

v.
LEWIS

17th February, 1955.

Lord Oaksey

MY LORDS,

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

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

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

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

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

Mr. Justice Devlin appears, in my opinion, to have disregarded what Miss
Morgan said as to her reasons for not returning immediately to the two
children. He said: " If the case had been that the child was hurt suffi-
"ciently badly to give rise to a degree of alarm that drove from Miss

" Morgan's mind the other calls upon her, or to put her into the position of
" having to choose between two duties, both of which she could not ade-
" quately perform, I should have felt gravely handicapped by lack of material.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

" Q. Not the other? A. No.

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

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

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

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

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

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

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

For these reasons I would allow the appeal.

Lord Goddard

MY LORDS,

I need not reiterate the facts of this somewhat, difficult case. The question
of general importance that is raised is whether there is a duty on the occupiers
of premises adjoining a highway to prevent young children from escaping
on to the highway so as to endanger other persons lawfully passing upon it.
By " young " children I mean those of such tender years that they may be
presumed to be unable to take any care for their own safety and whom a
prudent parent would not allow to go into a street unaccompanied. A long
series of cases culminating in Searle v. Wallbank [1947] A.C. 341 have estab-
lished, now beyond controversy, that an occupier is under no duty to fence
his fields, yards or other premises so as to prevent his cattle or other
domestic animals from escaping on to the highway, though by so doing
danger, and it may be disaster, is caused to passers by. If, then, an occupier
is not liable for the escape of an animal, is he to be held liable for that of an
infant, who from the standpoint of reasoning powers is much the same as a
sheep or any other domestic animal? Now, once a doctrine has become a
rule of law it is the duty of the Courts to apply and follow it without regard
to its origin, but if to follow it would be to extend it, in my opinion it is
not only legitimate but essential to examine the origin and reason for it if
it be known. How some rules of law arose is not always known. For
instance, except for the fact that in 1790 Lord Kenyon laid it down cate-
gorically in Merryweather v. Nixan 1 S.L.C. 449 that there was no con-
tribution between joint tort feasors no one has ever discovered whence the
rule came, but it remained the law till abrogated by the Law Reform Act,
1936. But how the rule your Lordships have to consider arose is, I think,
known, its origin having been explained particularly by Viscount Maugham
L.C. in Searle v. Wallbank (supra) and in Heath's Garage Ltd. v. Hodges
[1916] 2 K.B. 370 in the judgment of Neville J. It arose because at least
most of the roads in this country originated over unenclosed country when
the open field system of farming prevailed and long before fencing became
usual, and to this day hundreds of miles of roads run through unenclosed
land, so cattle, sheep and all domestic animals could and still do wander on

and over such roads, and the presence of domestic animals was not regarded,
to use the words of Neville J., as " inconsistent with the reasonable safety of
" the public using the road." Whether this doctrine should prevail in these
days of swift moving motor traffic, at least in the case of roads in enclosed
country, is for the legislature to consider, but it has never been applied to
the presence on the roads of human beings of whatever age, nor to an
inanimate object. Perhaps the simplest way of accounting for the rule is
that dedication of roads at least in country districts must be presumed to
have been sub modo, subject that is to the possible presence of domestic
animals upon them. How far the doctrine applies in towns or populous
places may. I think, still be considered a debatable question. Having regard
then to its origin, it would, in my opinion, be unwarrantable to extend it to
the facts of the present case.

The position then is that the Defendants maintain a nursery and infant
school in premises adjoining a highway in a town and are, in my opinion,
under a duty to take care that the children themselves neither become
involved in nor cause a traffic accident. At the trial the principal matter
relied on as establishing negligence was that this child and one other were
left unattended by the teacher in charge for a short time during which they
got out of the school grounds. The learned trial Judge thought it a border-
line case, as did Somervell L.J. but on the whole found the teacher was
negligent. This is an inference drawn from the facts found by the learned
Judge and. in my opinion, is open to review by your Lordships, who, accept-
ing the facts so found, are in as good a position as the Courts below to
determine whether they justify holding Miss Morgan guilty of a want of
care. Reluctant as I must be and am to differ on such a matter, I cannot
hold that an inference of negligence on her part should be sustained. Her
duty was that of a careful parent. I cannot think that it could be con-
sidered negligent in a mother to leave a child dressed ready to go out with
her for a few moments and then, if she found another of her children hurt
and in need of immediate attention, she could be blamed for giving it, with-
out thinking that the child who was waiting to go out with her might wander
off into the street. It is very easy to be wise after the event and argue that
she might have done this or that; but it seems to me that she acted just as
one would expect her to do, that is to attend to the injured child first, never
thinking that the one waiting for her would go off on his own. The utmost
length of time she was out of the room was 10 minutes, but it is plain that
the child must have gone off very soon and I should think almost imme-
diately after Miss Morgan had gone to the lavatory. He had to go from
the room, across the playground, out into the side lane, down to the main
road and then some way along the latter, cause the accident and be brought
back to the place from which he started, there to be seen by Miss Morgan
all within this short space of time. And this was a child described as
obedient and who had never before left the school by himself as he was
always fetched by his mother. I cannot bring myself to lay the blame for
this tragic accident on Miss Morgan. But this does not conclude the matter
as far as the Defendants are concerned. They maintain a nursery school
and an infant school on these premises. In the former they accept the care
of children from 3 to 5 years and in the latter those of 5 to 7. During the
time when this child was in their care he is found outside the school premises
wandering in the street. That, in my opinion, clearly calls for an explanation
from the Defendants. They have only shown that the child left the room
in the temporary absence of the teacher and so got into the playground.
In the playground he would have been safe at least from traffic risks. AH
we know is that the gates must have been open or so easy to open that a
child of 3 or 4 could open them. True the nursery children are put when
out of school into the playpen but infants from 5 to 7 play in the play-
ground. If it is possible for children of that age, when a teacher's back may
be turned for a moment, to get out into a busy street this does seem to
indicate some lack of care or of precautions which might reasonably be
required. There is no analogy between a school playground and the home
in this respect. At any rate no satisfactory explanation has been given for
this child being found in the street at a time when he was in the care of
the Defendants, and for this reason T would dismiss the appeal.

Lord Reid

MY LORDS,

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

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

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

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

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

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

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

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

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

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

it might be reasonable to foresee injury to the child but not reasonable to
foresee that the child's action would cause injury to others. I can see no force
in that: one knows that every day people take risks in order to save others
from being run over, and if a child runs into the street the danger to others
is almost as great as the danger to the child.

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

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

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

The Appellants say that it would be unreasonable to apply that principle
here because if such a duty is held to exist it will put an impossible burden
on harassed mothers who will have to keep a constant watch on their young
children. I do not think so. There is no absolute duty, there is only a
duty not to be negligent, and a mother is not negligent unless she fails to
do something which a prudent or reasonable mother in her position would
have been able to do and would have done. Even a housewife who has young
children cannot be in two places at once and no one would suggest that she
must neglect her other duties, or that a young child must always be kept
cooped up. But I think that all but the most careless mothers do take many

precautions for their children's safety and the same precautions serve to
protect others. I cannot see how any person in charge of a child could be
held to have been negligent in a question with a third party injured in a road
accident unless he or she had failed to take reasonable and practicable pre-
caution for the safety of the child.

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

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