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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carolan v The Board of Management of St Ciaran's National School [2006] IEHC 416 (06 July 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H416.html
Cite as: [2006] IEHC 416

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Judgment Title: Carolan v The Board of Management of St Ciaran's National School

Neutral Citation: [2006] IEHC 416


High Court Record Number: 2004 10790P

Date of Delivery: 06 July 2006

Court: High Court


Composition of Court: Feeney J.

Judgment by: Feeney J.

Status of Judgment: Approved



Neutral Citation Number: [2006] IEHC 416


THE HIGH COURT

DUBLIN

2004 NO 10790 P


MS. AOIFE CAROLAN Plaintiff



And



THE BOARD OF MANAGEMENT OF

ST. CIARAN'S NATIONAL SCHOOL Defendants







JUDGMENT DELIVERED BY MR. JUSTICE FEENEY

ON THURSDAY, 6 JULY 2006








JUDGMENT WAS DELIVERED ON THURSDAY, 6 JULY 2006 BY

MR. JUSTICE FEENEY, AS FOLLOWS:



MR. JUSTICE FEENEY: This is a claim brought by the

plaintiff for damages for

personal injury arising from an accident that occurred to the

plaintiff at the defendant's school on 13 May 1997. The

plaintiff was on that date some five weeks short of her 13th

birthday and was in sixth class. She had started in that

school at the beginning of fifth class and was nearing the

end of her second full year as a student of that school.

During both her years in the school, the plaintiff's teacher

was Mr. John Walsh. Mr. Walsh was an experienced teacher,

having graduated from St. Patrick's in Drumcondra in 1974,

and by the time of the accident had been continuously working

as a primary school teacher for over 20 years, and by the

time he came to give evidence for some 32 years.



The system as St. Ciaran's was that one teacher taught all

subjects to a particular class. Mr. Walsh was Aoife

Carrollan's teacher and he covered everything in the

curriculum including physical education. At the time of the

accident Mr. Walsh was taking a PE class which was due to

last for about one hour starting at 1:30 p.m. and ending

shortly before the end of the school day at 2:40 p.m. The

accident occurred during a game of "dodgeball" which was part

of the PE class. The form of "dodgeball" being used was a

particular variation used in the school. During the course

of the game, which had been going on for some time, the

plaintiff had to run or traverse the width of the room and

had to avoid being hit by any of three sponge balls being

thrown by three classmates.



They, the classmates, were standing to the side as the

plaintiff crossed the floor and the plaintiff had to avoid

being hit by dodging, weaving, stopping and running. The

object of the game was to avoid being hit and to cross the

room. If a pupil was hit that pupil was out, and went to sit

on a bench. The plaintiff was the last successful pupil,

that is un-hit, whilst crossing the room, and had to make one

more successful crossing to finish the game. The plaintiff

had made some three or four crossings without being hit to be

the last pupil in the game.



In making the final crossing the plaintiff avoided the first

ball and in trying to avoid either the second or the third,

the plaintiff is uncertain in her evidence as to which, she

was ducking or weaving and came to a stop and in moving off

again to try and reach the far side, she stumbled or tripped

over her own legs and fell to the ground on her left arm.

That fall caused a severe injury to the left arm and she had

a fracture of both her ulna and radius. The injury was so

severe as to require open reduction and internal fixation and

thereafter a further operation to remove the metal plate.

The plaintiff has been left with two extensive scars on

either side of her forearm, one of approximately eight inches

in the length and the other of approximately six inches.



The above factual description of the accident is not disputed

and is accepted as an accurate description of how the

accident occurred. There are a small number of factual

matters in dispute; there is no issue as at suitability of

the premises or in particular as to the suitability of the

floor surface and this was expressly acknowledged in the

opening of the plaintiff's case. It was also acknowledged

that there was no issue in relation to supervision.



The facts that are in issue are whether the plaintiff had

ever previously been involved in a game of "dodgeball" and

secondly, whether the game was being used as a warm up at the

start of the class period rather than towards the end of the

period following an independent warm up. The evidence

concerning whether or not the plaintiff had taken part in the

this "dodgeball" game on a previous occasion or not is

somewhat uncertain. The plaintiff believes it was her first

experience of the game. The teacher, Mr. Walsh, indicated

that had the game was a regular feature of a PE class and

that the plaintiff, in all probability, would have

participated on a number of occasions during her time with

him in fifth and sixth classes.



The plaintiff had certain absences during fifth class due to

ill health but had been a regular attender during sixth

class. On balance I would favour the evidence which suggests

that the plaintiff would have participated in this type of

game on other occasions. It is unlikely that she would have

missed all the occasions during fifth and sixth class when it

was played. However this finding is not of particular

significance as it is apparent that the variation of

"dodgeball" used in the school had simple and straightforward

rules of a basic kind and by the time of the accident the

plaintiff would have been aware of the format of the game or

activity.



Also there is no case made to suggest that a lack of

understanding of the format caused the accident. It is the

format itself rather than a knowledge of same which is

criticised by the plaintiff. The issue of the use of the

game or activity as a warm up is by and large academic. It

is extensively questioned as a suitable warm up exercise in

the report of the plaintiff's Physical Education expert, Ms.

Judith Wooton. However, the balance of evidence tends to

support the view that there was an independent warm up of the

type approved by Ms. Wooton. The plaintiff and her classmate

do not recall one on that day, but the evidence of Mr. Walsh

indicates that there was an independent warm up. The Court

prefers that evidence and the lack of recall on the part of

the plaintiff and her classmate can be explained by the

passage of time.



The Court accepts that it is likely that the accident

happened towards the end of the PE class as suggested by

Mr. Walsh, rather than early on as contended for by the

plaintiff. The teacher's evidence that the Head Master was

sent for after the accident and that when he arrived, the

class time was nearly over. And that evidence is strongly

supportive of the accident happening near 2:30 p.m. after the

majority of the class time had passed. The Court favors the

evidence that there was an independent warm up. Even if

there was not, the activity involved in the class up to the

time of the accident or even the limited activity involved in

the particular "dodgeball" game would have been sufficient

for a warm up. Also the type of injury and accident do not

relate to the existence or non-existence of a warm up.



The real criticism put forward on behalf of the plaintiff was

that the variation of "dodgeball" used in the school or its

particular format was unsafe and should have been identified

as such. And it was unsafe because the throwers threw from a

right angle position or sideways-on to the direction that the

plaintiff was required to run. It is suggested that by

having the three throwers sideways-on to the direction the

plaintiff was travelling, that this caused a so called

conflict in the focus of attention. By having a conflict of

attention between the travelling forward and the looking

sideways to see the balls approaching, together with the

added likelihood of the participant moving or jerking her or

his head together with the pressure to succeed, resulted in a

situation where there was a clear risk of a participant

losing balance and tripping or falling. This contention was

support bid the evidence of Ms. Wooton. The Court does not

have regard to the engineer's view on the appropriateness of

the activity as it considers his expertise to be of marginal,

if any, relevance to such matters.



The defendant's case is that this was a simple straight

forward game or activity, suitable for 12 year old with no

significant risk of injury over and above the risk inherent

in physical activity, where a trip or fall can occur. And

that the format was safe and shown to be safe by 20 years of

use and there being only one accident, that is the accident

the subject matter of this case. This view was supported by

the evidence of Dr. Joseph Lennon.



The Court has considered both experts' evidence and the

evidence as to fact, and is of the clear view that the more

rational and credible evidence of expert opinion is that of the

defendants. The experts evidence called by the defendant is

in the Court's view compelling in support of an absence of

negligence on the part of the defendant. This is not a case

of defective premises or equipment or lack of supervision,

but rather a claim that a particular activity or game was

unsuitable, likely to cause injury or as stated by the

plaintiff's counsel, inherently dangerous and ill-considered

as being suitable for 12 year-olds. The Court is of the view

that this contention is based upon a contrived examination

and analysis of the game or activity.



The criticism from the plaintiff's expert lacks reality and

disregards many activities and games requiring a conflict of

focus; it disregards the simple and straight forward nature

of the activity or game compared to other more complicated

games suitable for and played by 12 years old, such as

football or basketball, and it also disregards 20 years of

safe use of the game.



The Court is satisfied that the facts of this case show that

the plaintiff dodged and weaved to avoid a ball she saw

approaching and came to a stop. That appears to be common

case, and when taking off again she tripped herself. That

unfortunate event is a type of risk or event inherent in

physical activity and it is the Court's view that the school

did not impose an unsuitable or unsafe activity but rather

insured that an activity suitably and reasonably safe was

being followed. The Court is of the view that such activity

properly formed part of a PE class.



The Court found Dr. Lennon's evidence and opinion credible,

practical, and based on true experience. It accepts the

evidence from him that this was a simple, safe game suitable

for the premises and pupils. As he said, "the game of the

simplest and safest form". The Court is satisfied that the

theory of risk emanating from dual focus is unreal and

contrived. What happened here was an accident which can

arise during any physical activity. All physical activity

carries some risk; the Court is satisfied that the chosen

activity did not unreasonably or unsafely create a risk and

that the game was properly chosen for use and appropriately

considered by the teachers, both as to use and format. There

is, as Dr. Lennon says, a risk of falling in any moving game.

The risk is incidental, not inherent. And the Court is the

of the view that it certainly cannot be categorised as this

game being inherently dangerous. Physical activity is both

an appropriate and vital part of the school curriculum and

the activity chosen here was a simple and straight forward

game that could be safely played. The Court is fully

satisfied that there was no negligence or lack of care on the

part of the defendant and therefore dismisses the plaintiff's

claim.



the judgment was then concluded






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URL: http://www.bailii.org/ie/cases/IEHC/2006/H416.html