Rónán Mullen (Independent) | Oireachtas source

Yes.

Cuirim fáilte roimh an Aire Stáit. As I have said here before, education should never be measured just in terms of grades or CAO points, nor should it be geared towards preparing young people to be economic units, ready for employment by multinationals, at least not primarily. Education should be about allowing children to become fully rounded human beings. A vital part of that is allowing children to socialise with their peers and to have adequate time for sport and recreation. Our happiest memories from school are not of books or exams, but of the bonds we made with friends. All schools are required to deliver physical education as part of the curriculum, but that is only part of the story. Children should have as much fresh air and physical activity as they want and need, in between class time. I do not need to recite the trends in Ireland and further afield in relation to childhood obesity. It is a serious problem, and encouraging activity during school hours is one way of addressing it.

There has been a trend over the last decade or more for playground activities and ad hocsports to be restricted in various ways by school management, due to the fear of litigation arising from small accidents and minor injuries. Ball games are often curtailed or prohibited. Some schools have even implemented a so-called "no-running policy". There is something particularly Kafkaesque and utterly joyless about telling children not to run in a schoolyard, yet we hear anecdotal evidence at least of that going on. Aside from the fear of litigation, there is a more general trend in recent years, perhaps on the part of some parents, State bodies, and policymakers to wrap children in cotton wool and shield them from any kind of negative experiences. That is not a real world approach because cuts and bruises, falls and knocks are and should always be a part of most children's lives.

The Bill I sponsor today recognises that reality, by protecting schools from unjustified liability for everyday schoolyard accidents, and allowing them to facilitate increased activity for children. The Bill does not seek to bring any radical change to the law. On the whole, the courts have been very sensible in this area, but I hope it will bring some additional comfort to schools by codifying in legislation what has largely, although not always, been the view taken by the Judiciary where disputes have arisen.

The restriction of schoolyard activities is on the record of these Houses. The Joint Oireachtas Committee on Children and Youth Affairs conducted ten days of hearings into childhood obesity in 2018 and received a number of oral and written submissions, including from Departments. The committee's report of November 2018 stated that it:

... has heard evidence, albeit of an anecdotal nature, that children in some schools are being prevented from partaking in physical activity during break times due to restrictions being imposed by the schools. This ... is as a result of schools being concerned about possible liabilities arising on behalf of the school where a child is injured while playing on the premises.

The Teachers' Union of Ireland, TUI, submission stated:

Many schools are concerned about a litigious culture ... Logical but regrettable responses...include schools being so concerned ... that some have instigated limitations on students' physical activities, such as running in the schoolyard.

The INTO referenced similar "anecdotal evidence of "no running policies" in school yards. We are ... unfortunately, in a culture of litigation and boards of management are very exposed".

Part of the problem here is that it is based on anecdotal evidence. We all know a problem exists, but we have little tangible proof of it that we can point to. I will come to the reasons for that. The Oireachtas joint committee proposed a means of turning that anecdotal evidence into something more concrete. It recommended that the Government would: "survey schools so as to identify the scale of the issues". Curiously, it did not seem to consider whether more than just "encouragement" of schools was needed, or that perhaps new legislation would also help. In January 2021, the Minister for Education, Deputy Foley, in response to a written parliamentary question in the Dáil about the actions her Department had taken on foot of the report, gave no indication that she had surveyed schools in line with recommendation 13. I am not aware of this having been done in the meantime. Apologies if I ought to be aware, but I would be very interested to know whether there has been such a survey.

A number of cases have come before the courts in recent years where schools have been sued by parents on foot of schoolyard or sporting injuries. These include: an injured knee during high-jump practice; a slip and fall during a hockey match; a broken arm during a game of chase; a child being struck in the eye with a chocolate bar by another child; and a child being hit in the eye by a pencil thrown by another child. I think we can all agree that these are not the sort of things that should normally end up in the Circuit Court or High Court, and yet they have. Thankfully, the Judiciary has largely taken a commonsense approach, treating minor injuries as just that. In two recent High Court cases - Dunne v. St. Paul's School, in 2019, and Cole v. Sisters of Joseph of Cluny, Killiney in 2016, the court ruled in favour of the schools in both cases, saying:

Accidents can happen, and a school is not automatically to blame, and that sport and playtime is an important part of the school experience and no indoor or outdoor sport could be conducted if schools were held responsible for all injuries.

A court dismissed another claim in 2017 for a broken arm as "an old fashioned accident, pure and simple". Significantly, the court also said in that particular case that "no prudent, responsible and reasonable parent would have prohibited the game of chase that had been taking place in the school yard on the day." The concept of a "prudent parent" is central to my Bill, and runs through many of the cases taken against schools. For example, in Maher v. Presentation Junior School, Mullingar in 2004, the court said: "The school is expected to be no more and no less vigilant of those in its care than a prudent parent would be in his or her own home".

Also in 2004, the Supreme Court gave its view on the issue in Murphy v. Wexford VEC. It stressed the importance of schools having adequate and reasonable supervision in place, relative to factors including the age of pupils, the number of students, the locations they congregate, and any other characteristics of which schools are aware, for example, any particularly troublesome students. The court said that no school could possibly supervise all students, all the time, but that once adequate supervision is in place, a school should not then be held accountable for everyday accidents. We should note the phrase "once adequate supervision is in place". I think we would all agree with that position, and that is what this Bill today seeks to ensure.

Why is legislation needed if the courts are generally standing on the side of schools in the great majority of cases? Clearly, despite the courts being onside, schools are still apprehensive. Why else would they be imposing no-running policies and so on? There are a couple of possible reasons that I said I would come to.First, as we know, when it comes to insurance claims, there is an iceberg effect whereby the only legal claims we see are those which are before the courts. Insurance companies are often willing to settle rather than fight claims which they are confident of winning. This is not due to laziness or incompetence on their part but a simple cost-benefit analysis. The cost of fighting a case, particularly the prospect of not being able to recover legal costs if the schools win the case, will often lead insurers to go for a quick settlement. This has the effect of adding to premiums for the school and all schools, and adds to the anxieties of school management about minor accidents. I am not saying that a direct result will be an increased premium in individual cases but over time all schools will be affected.

Second, teachers and school management are human beings who operate in a high-stress environment and with limited budgets. The prospect of dealing with a phalanx of solicitors and barristers over schoolyard accidents is obviously far less preferable than the easier option of curtailing sports or implementing so-called “no running” policies. I was also concerned to find, quite by accident, a firm of solicitors in Cork that loudly advertises its work in taking litigation against schools for such injuries. I hope that is an isolated case because if not it would significantly add to this problem.

We know that just because the courts tend to side with schools now is no guarantee that this view will continue to apply in the future in the absence of clear legislative guidance. In the fourth edition of McMahon and Binchy’s book, Law of Torts, which is agreed to be the seminal work on Irish law in this area, and apologies to any rival writers and thinkers who might be in the room and elsewhere, the authors discuss litigation against schools and give the following warning:

the problems of care and control in a school bear some resemblance to those confronting a parent in the home but they are far from identical. It is possible that in a future decision an Irish court will drop the reference to careful parent and stress the fact that it is the standard of the reasonable school teacher or manager which should prevail.

In other words, McMahon and Binchy warn that the standard of care might be changed in future. A higher standard of care might be expected of a teacher who is after all employed by the State than would be expected of a parent, which would then expose schools to significant additional liability. My Bill would preclude that possibility by writing the "prudent parent” test into statute law.

The Bill inserts a new section 51Q into the Civil Liability Act 1961, and its effects are set out in the Explanatory Memorandum. Section 51Q(1) would protect a school from liability for injury to a student on its premises, provided that it has an adequate system of supervision in place and that the school is in compliance with health and safety standards which are applicable to it under health and safety law, and regulations which the Minister for Education can impose on it. This would effectively codify the judgment of the Supreme Court in Murphy v.Wexford VEC, which found that it is unfeasible to have all children under constant supervision, but a school does have a duty to have reasonable supervision in place depending on the particular circumstances.

Section 51Q(2), (3) and (4) protects a school from liability for any act done in good faith by a teacher, another staff member or a volunteer who intervenes in good faith to aid a child in an emergency but where, for whatever reason, that good faith act ends up causing injury to the child. This mirrors the good Samaritan provisions which already exist in the 1961 Act.

Section 51Q(5) would enshrine in statute that the standard of care, which applies to teachers and other school staff, shall not be greater than the standard of care that would be expected of a reasonable and prudent parent, which again enshrines recent judicial practice in statute. It is important to note that if schools are absolved from negligence in such cases, parents cannot then seek to sue a teacher who has acted in good faith in the course of his or her employment. Under the law on vicarious liability, only a school could be held accountable for the actions of a teacher in the course of his or her employment. Under common law, a teacher could only be held accountable if he or she acted in bad faith or conducted himself or herself in a grossly negligent manner. Section 51Q(6) provides a standard carve-out recognising this aspect.

I am aware of the fact that there is occupier's liability ar na bacáin, mar a deir siad i gConamara. It does suggest, if you like, lessening the burden on occupiers. It is my view that particular legislation is necessary to give the necessary comfort to schools in this context mirroring the attitude generally taken by the court but mindful that there still appears to be a negative culture around playground recreation and that necessary bolstering of the protections for schools is desirable in legislation. On that basis I commend this Bill to the House. I am delighted that I have left more than two or three minutes for my eminent seconder behind because I know that whatever he has to say will make eminent good sense.