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Palmer v Cornwall County Council, Court of Appeal, 21 May 2009

15 June 2009
The issues

Schools – supervision – appropriate level of supervision.

The facts

On the 12th July 2001 the Claimant, then a 14 ½ year old pupil at Newquay Tretherras School in Cornwall, was at lunch break and in a play area when another pupil threw a rock at a seagull. The Claimant was hit in the eye by the rock. Proceedings were commenced against both the pupil and the Local Education Authority. An Order was made for the Trial of liability only and shortly before that Trial, proceedings against the pupil were withdrawn. The school was a mixed school of a significant size. The arrangement at lunch was that pupils ate their lunches indoors. It was forbidden to take food outside, although it happened frequently. Lunch break lasted between 1.20pm to 2pm. The Claimant was a year 9 pupil and there was a designated area for years 9 and 10 at one end of the field. There was another designated areas for years 7 and 8 at another. Each area was about the size of a football pitch. One of the Claimant’s year group, Matthew Lamb, had placed food on the ground to tempt seagulls to swoop down so that he could throw stones or rocks at them. In throwing one such rock, he accidentally hit the Claimant. Supervision with the play areas on the field was organised on a rota basis and was carried out on by dinner ladies. At the time there were two dinner ladies on duty. One was responsible for supervision inside and the other was responsible for supervision outside. The one who was responsible for supervision inside, moved to the outside as the indoors emptied of pupils. At the relevant time only one dinner lady was on duty outside. There were approximately 270 pupils in each year group. Although the precise number of pupils to be supervised was a matter of dispute, the Court of Appeal proceeded on the basis that there were probably over 400 pupils. The Claimant failed to do so in the evidence of risk assessment, guidance, warnings or training in relation to the supervision of the lunch break.

The decision

Although the Claimant relied on guidance produced by a different Education Authority, the Court of Appeal took the view that it was not possible to say that a certain ratio must be adhered to in each and every case, since everything must depend on the circumstances and the assessment of risks. Generally, younger children needed closer supervision than older children, but all needed supervision. It was doubtful whether two supervisors were sufficient. Insofar as the Recorder found the supervision of years 9 and 10 as adequate, that finding was perverse. To have one dinner lady supervisor who would be stretched to supervise over 150 pupils in years 7 and 8, only glancing occasionally at years 9 and 10 was clearly negligent.

Since the purpose of appropriate supervision is to deter children taking part in dangerous activities, as well as to stop dangerous activities if they do occur, a Court should not be too ready to accept that the dangerous activity would have happened anyway.

Third, where, as here, the Recorder had found witnesses called by the Appellants were telling the truth, there was no reason not to accept their evidence that if a supervisor had been near they would not have thrown stones because they knew that stone throwing was prohibited. Matthew Lamb had not been called by the Claimant. However, it lay ill in the mouth of the Defendant to criticise the Claimant for not calling him when they could equally have done so.

Appeal allowed.

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