Kearn-Price v Kent County Council

A school’s duty to take reasonable care for pupils’ health and safety may arise while pupils are lawfully on school premises before or after formal school hours. The scope of that duty depends on all the circumstances. Constant supervision may be unnecessary, but reasonable protective measures may still be required.

Where a school has banned a dangerous activity or object, regular breaches of the ban, known risks of injury and the limited burden of enforcement may make spot checks and more rigorous enforcement reasonably necessary. Evidence of usual practice at other schools is relevant but not conclusive. An appellate court should be slow to disturb a trial judge’s inference on causation where the judge heard the evidence and no compelling error is shown.

The claimant, a pupil aged 14, was seriously injured when struck in the eye by a full-size leather football in a school playground shortly before registration. The school had banned such footballs, but the ban was regularly flouted and there was no pre-school supervision or spot checking.

The county court found the school liable in negligence on liability and causation. The council appealed, contending that no duty to supervise arose before school hours, that enforcement of the ban was unreasonable, and that the causal finding was unsupported. The central issues were the scope of the school’s duty before formal school hours, whether the duty required enforcement measures, and the proper appellate approach to the causation finding.

1. Appeal dismissed. The school owed pupils lawfully on its premises a general duty to take such care for their health and safety as was reasonable in all the circumstances. That duty was not excluded merely because the pupils were present before formal school hours. Ward v Hertfordshire County Council [1970] 1 WLR 356 did not establish any absolute rule to the contrary. The approach in Geyer v Downs and anr [1977] 17 ALR 408 was agreed.
2. The scope of the duty might be narrower before school hours than during formal school time. The need for supervision depended on matters including the period involved, the nature and obviousness of the risk, the pupils’ activities, the history of accidents, and the burden of the proposed precautions. The court endorsed the general approach stated in Woodbridge School v Simon Chittock [2002] EWCA Civ 915.
3. On the facts, the judge was entitled to find that the school had to take reasonable steps to enforce its ban on full-size leather footballs, including spot checks shortly before registration. The balls were known to be dangerous, the ban was regularly ignored, and additional enforcement would not have imposed an undue burden. Evidence that other schools did not provide pre-school supervision was highly material but not conclusive, as explained in Wilson v The Governors of the Sacred Heart Roman Catholic School [1998] PIQR P145.
4. The judge was entitled to infer that effective enforcement would probably have prevented the accident. Although an appellate court may be as well placed to assess some inferences, a trial judge may be in the better position where the inference depends on an interpretation of primary facts and the evidence of witnesses. The approach in Hippolyte v London Borough of Bexley [1995] PIQR P309 was applied. No compelling reason existed to disturb the causation finding.

• Court of Appeal (Civil Division): The appeal from the Tunbridge Wells County Court was dismissed. The county court’s findings on liability and causation were upheld.