Bohane v Driscoll

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 19 February 1929
• Date: 19 February 1929

Supreme Court.

Bohane v. Driscoll

MARGARET BOHANE, an Infant, by PETER BOHANE,her Father, and next Friend

Plaintiff

and

CORNELIUS DRISCOLL, Defendant (1)

Negligence - National School - Fire screen removed from fire - Child severely burned - Allurement - "Trap" - Licensee - Action in Circuit Court - Damages awarded - Damages increased by High Court on appeal - No application to High Court to vary decree of Circuit Court - Increased award of damages set aside by Supreme Court - Public Authorities Protection Act, 1893, sect. 1 - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 61 and 62 - Courts of Justice Act, 1928 (No. 15of 1928), sect. 11 - Rules of High Court and Supreme Court, 1926,Or. XXIV, r. 6.

Appeal by the defendant from an order of the High Court (Hanna and O'Byrne JJ.) dismissing his appeal from a decree of the Circuit Court. The decree of the Circuit Court awarded the plaintiff £40 damages for personal injuries, and the High Court increased the amount so awarded to £150. The High Court gave liberty to appeal to the Supreme Court.

The plaintiff, a school-girl, six years of age, suing by her father as next friend, claimed by her civil bill £300 damages

against the defendant, the principal teacher at the Boys' National School, Tragumna, Co. Cork, for having so carelessly and negligently left a fire unguarded in the said school on 3rd March, 1926, that she sustained serious burns.

The plaintiff did not serve, prior to the hearing of the appeal to the High Court, any notice of her intention, upon the hearing of the appeal, to contend that the decree of the Circuit Court should be varied, under the provisions of Or. XXIV, r. 6, of the Rules of the High Court and Supreme Court, 1926; but, subsequent to the decision of the High Court, and prior to the hearing of the appeal to the Supreme Court, such notice was served by her.

The facts have been summarised in the head-note, and are fully stated in the judgment of the Chief Justice.

A National School contained two class-rooms, one for the junior and one for the senior class. During the luncheon hour the junior class were sent out-of-doors to the playground, and the defendant, who was the teacher of the senior class, used to allow the junior class to come into his class-room and warm themselves at the fire. He was under no obligation to allow the junior class into his room; he merely did it out of kindness to the children, and so that they would not have to remain outside in the severe weather. On one occasion he temporarily removed the fire screen which usually guarded the fire in his room, and, the junior class coming into his room as usual, and going to the fire, the clothes of one of them, a child of six years of age, caught fire, and she was severely burned. Suing by her father, as her next friend, she brought an action in the Circuit Court against the defendant, and was awarded £40 damages. The defendant appealed, but the High Court dismissed the appeal, and, of their own initiative and without any application having been made to them, increased the amount of damages awarded to £150, notwithstanding that no notice had been given by the plaintiff pursuant to Or. XXIV, r. 6, of the Rules of the High Court and Supreme Court, 1926, to vary the order of the Circuit Court. The defendant appealed to the Supreme Court.

Held by the Supreme Court, that the defendant was liable:

Per Kennedy C.J. and FitzGibbon J., because the plaintiff was a licensee, and the removal of the fire screen by the defendant created a "trap" for such a young child as the plaintiff;

Per Murnaghan J., because the principle of liability established byCooke v. Midland Railway Co. of Ireland, [1909] A.C. 229, applied.

Held also that a defence based upon the Public Authorities Protection Act was unsustainable, as that Act had no application.

Held further that the High Court, in the circumstances, had no jurisdiction to increase the damages awarded by the Circuit Court Judge, and his decree must be restored.

Kennedy C.J. :—

This is an appeal from a judgment and order of the High Court on an appeal from the Circuit Court Judge of Cork. The plaintiff in the action is an infant, suing by her father as her next friend, and the defendant was at the time of the matters in question a schoolmaster, and the principal teacher of the national school at Tragumna, Skibbereen, Co. Cork. The cause of action is that the plaintiff, being then about six years of age, on the 3rd March, 1926, through the negligence of the defendant, caught fire in the defendant's schoolroom, whereby she sustained serious burns and consequential personal injuries, in respect of which she claimed in the civil bill a sum of £300 for damages.

The circumstances were these:—This school at Tragumna is a mixed school, conducted in two divisions—senior and junior. It is mixed, in the sense that in each division boys and girls are taught together, but the classes are divided on the basis of age. The school building has two apartments; in one of which the junior class is conducted by a lady, Miss Daly, and in the other, the senior class is conducted by the defendant, Mr. Cornelius Driscoll, who was a principal teacher of long standing, but had retired shortly before the commencement of this action. The 3rd of March, 1926, the day in question, was typical of many days at that period of the year in this country—a cold day in spring. During the luncheon hour, which, apparently, was taken at the same time in both divisions of the school, Miss Daly, as was her custom, sent her pupils of the junior class out-of-doors while she ate her lunch in her schoolroom. The defendant, as was his kindly custom, admitted the children from Miss Daly's class into his schoolroom, so that they might warm themselves by the fire there, and escape from the sharp cold outside. He had, for the purpose of preparing his lunch, removed the fire-screen which usually guarded the fire in this room. We have had particulars of that screen supplied to us here to-day by consent of both parties, the evidence as reported not being sufficiently clear on the point. The screen was three feet in height, five feet in circumference, semi-circular in shape, and made of a wire mesh of three inches square. The screen which, as appears from the evidence, always stood or hung in front of the fire, was attached to the top bar of the grate by hooks. The purpose of such a screen was clearly to keep the children from coming within a dangerous distance of the fire. But, as appears by the evidence, Mr. Driscoll, in order to soften at the fire some butter for his lunch, removed the screen from the fire-place, and, as appears quite certain upon the evidence, he then went away without having replaced the screen, which he left standing to one side. The...