The end of in loco parentis in negligence

The courts now have a degree of flexibility to apply to the facts of a case, writes Michael Imperato

In the High Court in Northern Ireland, the recent case of Megan Murray v Mark McCullough as Nominee on Behalf of the Trustees and on Behalf of the Board of Governors of Rainey Endowed School (2016) NIQB 52 revisited the general test of negligence of a school and schoolteachers for injury to a pupil, and did so in a sporting context.

The claimant sustained serious dental injuries when struck by a hockey stick in a school match aged 15. The main injuries would have been prevented if she had been wearing a mouth guard, she was not. The claimant's case was that the school should have made her wear a mouth guard, or advised of the risks. Further, her parents should have also been advised so that they might have the opportunity of attempting to persuade her to wear the guard.

Traditionally, the term in loco parentis was used to describe the duty of care in common law that a teacher has towards a pupil, to the effect that a teacher has a duty to take the same reasonable care of the pupil that a parent would take in those circumstances.

In loco parentis originally embodied the 19th century common law principle that a teacher's authority was delegated by a parent so far as it was necessary for the welfare of the child. It emanated from Lord Esher's classic statement in Williams v Eady (1893) 10 TLR 41, Jackson v LCC (1912) 28 TLR 359 that: '[T]he schoolmaster was bound to take such care of his boys as a careful father would take of his boys.'

In Rich (An Infant) v London CC [1953] 1 WLR 895, Lord Justice Singleton, giving judgment in the Court of Appeal, quoted with approval the test set out by Lord Esher stating that it had been adopted ever since.

However, in Beaumont v Surrey CC 66 LGR 580 (1968) 112 SJ 704 Geoffrey Lane J stated that although Lord Esher's test was helpful in considering individual instructions to individual children in a school, when applied to an incident of horseplay in a school of 900 pupils, it was unrealistic.

In the context of that action the schoolmaster's duty, bearing in mind the known propensities of boys or girls between the ages of 11 and 18, was 'to take all reasonable and proper steps', to prevent any of the pupils under his care from suffering injury from inanimate objects, from the actions of their fellow pupils or from a combination of the two. The standard was high.

The standard applied in other schools is also a circumstance to be taken into account. In Kearn-Price v Kent County Council [2002] EWCA Civ 1539 [2003] PIQR, Lord Justice Dyson stated: 'I accept that evidence of what is standard procedure at schools generally is highly material to a determination of what is reasonably required of a school. But it is no more than that.'

In Murray, Stephens J took the opportunity to revisit the authorities. He defined the duty of care as being owed to the particular child or young person 'not out of benevolence or paternalism, but as of right'.

He was critical of the use of the terms 'parent' or a 'prudent father', stating that the 'paternalistic approach… diverts attention from the fundamental and simple proposition that the standard is to take reasonable care in all the circumstances'.

He went on to say: 'I would prefer that the standard of the duty of a school teacher should not be expressed as taking such care of his pupils as would a reasonably careful parent of the children of the family but rather taking reasonable care in all the circumstances.'

Thus the yardstick is not to be the 'careful or prudent father', but 'reasonable care'. Steps to be taken to discharge this duty remain high as young children may not be able to weigh up and assess risks. In Murray the balance of risk was between the short-term inconvenience and discomfort to the 15-year-old claimant of wearing a mouth guard against the long-term impact of serious injury.

The judge found as a matter of fact that the school had 'highly recommended' the wearing of a mouth guard, explained why, and reinforced this with regular warnings of the risks of not wearing one. It was repeated in writing in the school dress code for sports. Indeed, the claimant owned a mouth guard and wore it on occasion. The court held that, in the circumstances, the school was not negligent.

In attempting to discharge his duty of care the educationalist has the unenviable task of striking a balance between two values: protecting pupils from the risk of injury and providing them with a stimulating and enriching education.

The courts clearly recognise this and the 'reasonable care in all the circumstances' test of Stephens J seeks to provide judges with a degree of flexibility which they can apply to the particular facts of a particular individual case.

Michael Imperato is a partner at Watkins & Gunn Solicitors and co-ordinator for the Association of Personal Injury Lawyers (APIL) Wales @WatkinsandGunn