Lewis v Carmarthenshire County Council

A person responsible for a child too young to use a busy road safely owes road users a duty to take reasonable care to prevent the child from escaping unattended. Liability depends on reasonable and practicable precautions, not constant supervision.

An accident involving either the child or another road user is reasonably foreseeable once such a child enters a busy street. The special historical rule concerning domestic animals straying on highways does not extend to children.

A child aged nearly four escaped from a nursery school maintained by the local education authority and entered a busy street. A lorry driver swerved to avoid him, struck a lamp post and was killed. The driver's widow recovered damages from the authority before Devlin J.

The Court of Appeal affirmed the judgment, principally on the basis that the nursery teacher had negligently left the child unattended. The authority appealed. The central issues were whether reasonable precautions had been taken to prevent the child's escape, whether a duty was owed to road users, and whether the fatal accident was reasonably foreseeable.

1. Appeal dismissed by a majority of four to one. Lord Goddard, Lord Reid, Lord Tucker and Lord Keith of Avonholm held the authority liable. Lord Oaksey dissented and would have allowed the appeal.

2. Per Lord Reid and Lord Tucker, persons responsible for children so young that they cannot safely use a busy road alone owe road users a duty to take reasonable care to prevent those children from escaping unattended. Injury to another road user is a foreseeable consequence because people may take risks to avoid a child. Lord Keith agreed that neither the precise accident nor its precise result had to be foreseen.

3. Per Lord Reid, constant supervision was neither required nor practicable. Minor emergencies and distractions were foreseeable, however, and the authority should have provided against them. A reasonable precaution was to fasten or construct the outer gate so that a very young child could not open it.

4. Per Lord Goddard, Lord Tucker and Lord Keith, the appearance of a child of such tender years outside the school during school hours called for an explanation. This was because the event ordinarily should not have happened, rather than because the relevant facts were exclusively within the authority's knowledge. No satisfactory explanation was given for the absence of effective safeguards. The resulting inference or presumption of negligence was therefore unrebutted.

5. Per Lord Reid, [1951] AC 850 did not require the risk to be probable. A foreseeable possibility may be disregarded only where its risk is so small that a reasonable person would regard it as negligible. The risk of a serious road accident here could not reasonably be ignored.

6. Lord Oaksey, Lord Goddard and Lord Tucker considered that the teacher herself had not been negligent. Her brief absence was prolonged by the need to assist an injured child, and her conduct accorded with that of a prudent parent or teacher. Lord Reid regarded the issue as narrow and preferred to rest liability on the authority's failure to provide safeguards.

7. The House rejected the proposed analogy with the rule concerning domestic animals straying on highways. Per Lord Goddard, Lord Reid and Lord Keith, that rule arose from historical conditions concerning open and unfenced land. Its rationale had no application to young children and did not displace ordinary principles of reasonable foresight.

1. House of Lords: Dismissed the local education authority's appeal by a majority of four to one and affirmed its liability, although the majority did not sustain the finding of personal negligence against the nursery teacher.
2. Court of Appeal: Affirmed the judgment of Devlin J, principally sustaining the inference that the nursery teacher had been negligent.
3. High Court: Devlin J gave judgment for the driver's widow. He treated the question as borderline but found that the nursery teacher had been negligent.