CHEN SOON LEE v. CHONG VOON PIN & ORSHIGH COURT, MIRI

LEE HUN HOE J (OCJ)CIVIL SUIT NO. K/35/65

13 JUNE 1966

NEGLIGENCE聽- Teachers - Duty of to pupils taken on picnic - Duty of care.

Case(s) referred to:

Bolton v. Stone [1951] 1 All ER 1078

Brown v. National Coal Board [1962] 1 All ER 81, 89

Camkin v. Bishop [1941] 2 All ER 713

Donoghue v. Stevenson [1932] AC 580

Mersey Docks and Harbour Board v. Proctor [1923] AC 253 at p. 262

Morris v. West Hartlepool Steam Navigation Co. Ltd [1956] 1 All ER 385

Rich & Anor v. London County Council [1953] 2 All ER 376

Wakelin v. London South Western Rly Co. 12 App. Cas. 41, 44

Williams v. Eady [1893] 10 TLR 41

Wray v. Essex County Council [1936] 3 All ER 97

Wright v. Cheshire County Council [1952] 1 All ER 789

JUDGMENT

Lee Hun Hoe J:

(deliver by Silke J): This is an action by an administrator for damages for negligence. The first defendant was the principal of Chung San School, Riam Road, Miri. The second and third defendants were teachers in the same school. Plaintiff alleged that because defendants were negligent his daughter, Piek Leng met her death.

On 6 December 1964, a Sunday, a party of 53 students with seven teachers of the said school went on a picnic to Tanjong Lobang. In the afternoon deceased and her friends were playing a ball game in waist deep water when some of them apparently moved into what appeared to be a depression. They found themselves in difficulty. The teachers and some boys came to their assistance. Later it was found that deceased was missing. A search was carried out and deceased was found in very shallow water. Artificial respiration failed to revive her and she died that day.

Tanjong Lobang seems to be a well known spot in Miri and a popular picnic spot. On the day in question some Malay students from another school were also picnicking there. In fact for many years not only students from Chung

San School but other schools had their picnics there.

Chen Soon Lee聽(PW1), the deceased's father said that deceased did not tell him about going to the picnic but had informed other members of the family. As a result of her death he had lost her services and had spent considerable sum of money for the funeral.

Chai Tung Poh (PW2), the chairman of the Chung San School board of management said that the teachers did not inform the board about taking the children to the picnic. He said the board did not give the principal the right to take children to picnic. He said that if the principal wanted to take the children out of school he had to get permission from the board even on Sunday. At the outset I must say I am not impressed by this witness. He appeared rather evasive in various matters when questioned and kept on referring to certain

written rules of the board. When he was asked to produce the rules he was unable to do so as there were in fact no such rules.

Bong Ching Miaw (PW3), a supervisor of the said school, said that if the teachers wanted to take children to a picnic or outing they had to inform the board in writing. But he admitted during cross-examination that there was no such rule that teachers had to obtain permission to take children to picnic on Sundays or holidays. This witness is more impressive than PW2. However he made no mention to any written rules governing the conduct of teachers.

Chong Yuen Fah (PW6) is now studying in Miri Secondary School. She was previously a student in Chung San School. She is one of the students who went to that unfortunate picnic. She was playing a ball game with deceased and other girls. They were standing in a circle and they threw the ball from one to another. The second defendant taught them how to play. The water was only waist deep. After teaching them he went on to teach another group of students. Suddenly a big wash came and she fell down. They shouted for help. She was pulled up by a boy and helped to the beach. There she saw the teacher and other boys helping the other girls. Someone then made inquiry if all had come up. She mentioned that deceased had not. A search was made and deceased was found.

During cross-examination she mentioned that in 1963 she was also in the sixth year in Chung San School. She repeated the sixth year in 1964. She said in 1963 there was a similar picnic for the sixth year students at the same spot. She also played in the water. She went on to say that the picnic was arranged by the teachers in response to the request of the students. Each student was given a copy of a circular giving various instructions and information. She gave evidence well and her manner pleasing. I think her evidence assists the defence rather than the plaintiff.

According to first defendant the students of the sixth year made a request through their form teachers to have a picnic at Tanjong Lobang and he approved. He issued a circular to every student. Of twelve teachers in the

school six decided to join the students. The students were divided into three groups. Two teachers were assigned to each group. When the students assembled at the beach at Tanjong Lobang all the teachers were jointly responsible for all the students with the first defendant in overall control. Before lunch there was a roll call. After lunch they had a rest. Shortly after 1 p.m. they went to play in the water. The teachers went in first followed by the students. Later over ten students decided to go swimming in a fresh water swimming pool a short distance away. First defendant instructed three teachers to accompany the students there as the water in the pool was considerably deeper. There were thus four teachers (including first defendant) left to look after those at Tanjong Lobang. The three teachers were most of the time standing some distance apart in a line in the deeper part with the first defendants slightly farther away in front of the teachers. They were thus in pyramid formation.

I accept as a fact that the students were playing a ball game in waist deep water. At the beginning the teachers showed them how to play the game. Then they kept watch from the positions I mentioned previously. The object would seem to be to prevent students moving to the deeper part. According to first defendant the students moved gradually as they were playing the ball to the left. The teachers following the move. Suddenly more than ten students appeared to be struggling as if there was an area of depression in that part. The teachers and first defendant went to the spot and got the students out of difficulty. One of the students was first defendant's daughter. As a result of information from Chong Yuen Fah (PW6) it was realised that deceased was missing. A search was made in the area. Eventually Chen Chiok Ming, a teacher (DW4) found deceased in water of over one foot deep. Artificial respiration failed to revive her and she died.

Second and third defendants corroborated the evidence of first defendant substantially. Both had been to almost every picnic organised for the students in the past while at the said school third defendant had the distinction of attending a picnic while a student in said school where he latter became a teacher. After leaving Miri Krokop School where he taught for some ten years

Chen Chick Ming (DW4) joined Chung San School in 1963. While at Miri Krokop School he had also on many occasions taken students to Tanjong Lobang for picnic. In 1963 he also joined the Chung San School picnic at Tanjong Lobang.

The defence witnesses mentioned that there were small waves but none remember any particularly big wave. PW6 referred to a big wave when she fell down. It was possible that the sudden drop of the seabed causing a depression gave her the impression of a big wave coming over her. I accept the evidence of the defence witnesses where they conflict with the evidence of the students.

Mr Yong referred to the famous words of Lord Atkin in Donoghue v. Stevenson [1932] AC 580 as quoted by Lord Porter in Bolton v. Stone [1951] 1 All ER 1078 (at p. 1081):

You must take reasonable care to avoid acts or omissions which

you can reasonably foresee would be likely to injure your

neighbour."

Lord Porter then went on to say:

It is not enough that the event should be such as can reasonably

be foreseen. The further result that the injury is likely to follow

must also be such as a reasonable man would contemplate

before he can be convicted of actionable negligence. Nor is the

remote possibility to lead a reasonable man to anticipate it. The

existence of some risk is an ordinary incident of life, even when

all due care has been, as it must be, taken."

Lord Denning in his judgment in Brown v. National Coal Board [1962] 1 All ER 81, 89 after considering that the Coal Mines Act, 1911 and Factories Act, 1937 imposed a higher duty than was imposed by the common law then stated:

for the common law does not require a man to provide security

against a possible cause of injury, even though it is foreseeable."

The defence adduced evidence to show that for years students from various schools had been having their picnics at the same place and playing in the water in the same area. There was no known depression in the vicinity. The defendants adopted the same kind of supervision as had been done in the past.

In Wright v. Chesire County Council [1952] 1 All ER 789 where some ten boys were engaged in the exercise of vaulting the "buck" and plaintiff was injured the Court of Appeal allowing the appeal held that defendants were not liable in damages to plaintiff and considered that the test of what was reasonable care in ordinary everyday affairs might well be answered by experience arising from practices adopted generally and followed successfully for many years; and the evidence was that the defendants adopted a generally approved practice; taking into account the nature of the activity in question they had not been shown to have been negligent. In Rich & Anor. v. London County Council [1953] 2 All ER 376 where an infant plaintiff was injured by a piece of coke thrown at him by another boy the Court of Appeal held that the duty owed by the defendants to the boys was to take such care of them as a careful parent would exercise in like circumstances and that their supervision of the boys was adequate and therefore they were not liable to the plaintiff. And in Wray v. Essex County Council [1936] 3 All ER 97 the Court of Appeal held that an oilcan which caused injury to plaintiff was not an inherently dangerous thing and the master was under no duty to take special precautions. In all these cases it would appear that the incidents occurred in premises under the control of defendants. In the present case the incident occurred during school holiday and outside school premises at a picnic arranged at the request of the students themselves. Therefore the question whether defendants owed plaintiff any duty or not become of some importance.

Mr Yong submitted that there was adequate supervision and that the students were only allowed to play in shallow water. The incident was unfortunate and he further submitted that the depression was in the midst of shallow water and was unforeseeable. Defendants had no knowledge of the depression.

Mr Nayar submitted that what happened in Bolton v. Stone [1951] 1 All ER 1078 was not the same as what happened in the present case. Similarly he submitted that those cases cited by Mr. Yong had no bearing to the present case as they were distinguishable. He then referred to Morris v. West Hartlepool Steam Navigation Co. Ltd. [1956] 1 All ER 385 where appellant, a deck hand while working in a ship at sea fell through an open hatch and was seriously injured. The evidence did not show how the appellant happened to fall. The House of Lords by a majority held the respondents liable and allowed the appeal. The unprotected hatch was held to be an obvious risk and could readily have been avoided despite the fact that evidence of general practice leave off the 'between deck hatch covers of holds in grain ship after the holds had been prepared and not erect guard-rails round the hatches while grain ships in ballast were at sea and that accidents by falling in such holds were rare. I do not think anyone disputes Mr. Nayar's contention that general practice over a long period necessarily answers a charge of negligence. There the danger was foreseeable and a reasonable man weighing the matters would have clearly considered taking precaution. That is a case of master and servant and different consideration applies. It is important to bear in mind that each case must be decided according to its particular facts.

First, I will consider whether the teachers owed any duty to the deceased or her father to provide supervision for the students. Secondly, assuming that they owed such a duty whether in the circumstances they were negligent.

The picnic was organised at the request of the students themselves. It was on a Sunday and therefore a holiday. The teachers could refuse to accede to the students' request to go to Tanjong Lobang for a picnic. But then the students could have organised the picnic and gone there themselves. But I think the students seemed to be intelligent enough to wish to have the teachers with them. These students though young, should not be treated as Lord Goddard said in Camkin v. Bishop [1941] 2 All ER 713 "as if they were infants at creches and no master is obliged to arrange for constant and perpetual watching out of school hours." The facts in that case were briefly that during their halfholiday, a number of boys from a school were allowed by the headmaster to help a

farmer in a field. As a result of a horseplay among some of the boys, the infant plaintiff was struck on the forehead by a clod of earth, and one of his eyes was so badly injured that it had to be removed. In an action for damages for negligence against the headmaster it was contended that be was under a duty to arrange for the supervision of the boys while they were doing the work. It was held that in the circumstances of the case, the headmaster owed no duty to the infant plaintiff or his father to provide for supervision of the boys. Applying that principle to this case I would say that the principal and teachers owed no duty to the deceased or her father to provide supervision. The fact that there was a disastrous and unfortunate result is no reason for throwing the responsibility on the three defendants. There is no evidence to indicate that anyone was aware that the place the students were playing was dangerous.

Now assuming that I am wrong and that the teachers owed such a duty the question would be whether they were negligent on the facts of this case. It has been submitted and I accept it as a correct proposition of law that a schoolmaster's duty towards his pupils is the same as that of a "careful father". In Williams v. Eady [1893] ten TLR41 Lord Esher MR indicated quite clearly that a master was bound to take such care of his pupils as a careful father would take of his children. I will therefore apply this standard to the present case. It Is a well known principle that a parent is not liable for the negligence of his child unless the child is his servant or agent. He is however liable for his own negligence and is under a duty to exercise such control over his children as a prudent parent would exercise.

However when you look at it the defendants had done all they could to ensure that the students obeyed their instructions. There is no evidence that the students did not follow such instructions. The picnic was organised at the request of the students themselves to their form teachers who obtained permission from the principal. It was therefore for the students' benefit that the picnic was arranged. The principal prepared a circular and each student was given a copy to take home. The students were all in the sixth year. They were divided into three groups. Two teachers were assigned to look after each

group. The principal himself was in overall control of the groups. When they reached the beach the teachers had charge of all students with the principal again in overall control. Three teachers were spread out in the deeper part of the water with the principal farther away in front. The object was to prevent students from venturing to the deeper part. Students played game under supervision. The girls were playing a game one would expect normal and healthy girl students to indulge in. There is no evidence that they had gone to play in the deeper part of the water. In fact PW6 had said that the teachers had advised them not to go to the deeper part. These students were old enough to understand such warning. There were at the time only four teachers (including the principal). They had taken steps to supervise the students and to keep watch over them while they were playing in the water. There is no evidence that there was known danger or trap on that stretch of the beach where the children were playing. The depression was unsuspected.

The teachers had done all they possibly could to ensure the safety of the students. There is no evidence to show that any of the teachers had been at fault or neglected their duty thus causing decease to get drowned. The amount of supervision required depends on the age of the students and what they were doing at the time. The teachers had done more than was necessary. They kept the students under continuous supervision. There was nothing the teachers, or for that matter any other person, could do to fight against an unfortunate occurrence of circumstances. In my view looking at the facts I am inclined to agree with Mr. Yong that there was adequate supervision. It is difficult to see how such a case could be brought against the three defendant. Viscount Cave LC in his judgment in Mersey Docks and Harbour Board v. Procter [1923] AC 253 at p. 262 referred to Wakelin London South Western Ry Co 12 App Cas 41 44 which mentioned that

this House affirming the Court of Appeal, held that, assuming

(but without deciding) that there was negligence on the part of

the company, there was no evidence to connect the negligence

with the accident, and accordingly that there was no evidence to

go to the Jury."

Halsbury LC stated the principle as follows:-

It is incumbent upon the plaintiff in this case to establish by

proof that her husband's death has been caused by some

negligence of the defendants, some negligence of the

defendants, some negligent act, or some negligent omission, to

which the injury complained of in this case, the death of the

husband is attributable. That is the fact to be proved. If that fact

is not proved the plaintiff fails, and if in the absence of direct

proof the circumstances which are established are equally

consistent with the allegation of the plaintiff as with the denial of

the defendants, the plaintiff fails, for the very simple reason that

the plaintiff is bound to establish the affirmative of the

proposition: 'Ei qui affirmat non ei qui negat incumbit probatio.'"

I think these expressions apply with equal force in the present case. I sympathise with plaintiff but he has undertaken to prove that defendants are responsible for what happened. I regret that having regard to the evidence I am bound to hold that the plaintiff has not established on the balance of probabilities that defendants were in anyway negligent. This being so, I dismiss his claim with costs to be taxed.

Claim dismissed.

GOVERNMENT OF MALAYSIA & ORS v. JUMAT BIN MAHMUD & ANORFEDERAL COURT, KUALA LUMPUR

SUFFIAN, LP J; RAJA AZLAN SHAH, FJ; WAN SULEIMAN, FJ

31/12/1977

TORT - Negligence - Duty of care of a teacher in controlling pupils - Whether risks of injury foreseeable - Question of causation - Whether teacher took reasonable steps to protect plaintiff against such risks.

SCHOOLS - Teacher and pupils - Duty of care of teacher in controlling pupils.

Case(s) referred to:

Bourhill v. Young [1943] AC 92 Bradford v. Robinson Rentals [1967] 1 All ER 267

Chen Soon Lee V. Chong Voon Pin & Ors. [1966] 1 LNS 31

King v. Phillips [1953] 1 QB 429 Richards v. State of Victoria [1969] VR 139, 141 Ricketts v. Erith Borough Council [1943] 2 All ER 629, 631 The Wagon Mound [1961] AC 388

Counsel:

For appellants Nos. 1 & 2 - Lim Beng Choon (Senior Federal Counsel); Shearn,Delamore & Co. For appellantNo. 3 - C. Abraham; AKJ D'Cruz Co.

For the respondents - AKJ D'Cruz

JUDGMENT

Raja Azlan Shah FJ (delivering the judgment of the Court):

On 1 March 1977 we allowed this appeal and said that we would give our reasons at a later date. We now proceed to do so.

This appeal raises an important point, and it is the second occasion on which such a question relating to schools has come before our courts.

On the first occasion a party of students and teachers of Chung San School, Riam Road, Miri, Sarawak, went on a picnic to Tanjong Lobang, and the deceased (a school girl aged 11 years) while playing a ball game with her friends in waist deep water, suddenly moved into a depression and was drowned. Lee Hun Hoe J (as he then was) in dismissing the case held as a second limb of his judgment that a schoolmaster's duty towards his pupil is the same as that of a careful father, i.e., to take such care of his pupils as a careful father would take of his children (see Chen Soon Lee V. Chong Voon Pin & Ors.

[1966] 1 LNS 31.

The second occasion concerns this appeal. The facts are short and simple. The plaintiff aged 11 years old was a Standard v. student of Sekolah Dato Kiana Maamor Jalan Range, Seremban. He was injured in his right eye when another pupil, Azmi bin Manan ("Azmi"), celebrated his teacher's momentary inattention in class by pricking the plaintiff's thigh with a pin which produced a shock causing the latter to turn round and his right eye came in contact with

the sharp end of the pencil which Azmi was holding. The eye had to be removed subsequently. Azmi said it was an accident. The trial judge agreed that he did not deliberately stab the plaintiff's eye with a pencil. I think the evidence favours such an inference, otherwise the serious injury sustained by the plaintiff would have been immediately noticed. It is in evidence that Azmi was a playful boy and had on previous occasions poked the plaintiff and other boys with a pin or pencil but never in their eyes, and that was done without the knowledge of the form teacher or Mrs. Kenny in whose class the accident occurred. It also never occurred to any pupil to complain of Azmi's abnormal propensity.

It is common ground that at the time of the accident Mrs. Kenny had given written work to the class consisting of 40 pupils and it was during the period when she was doing her work at the table that Azmi wandered about pricking a boy sitting next to the plaintiff and also the plaintiff. It was argued before the trial judge that there was lack of supervision in Mrs. Kenny's class thus resulting in the accident which caused the injury to the plaintiff. That, it was contended, constituted breach of duty which the appellants owed the plaintiff. If Mrs. Kenny had paid particular attention to Azmi's behaviour, or misbehaviour, the accident would not have happened and therefore the plaintiff would not have sustained the serious injury.

The learned trial judge gave judgement for the plaintiff. After addressing his mind to paras. 297, 299 and 301 in Charlesworth on Negligence, 5th ed, he held as follows:

I am satisfied that there has not been sufficient or reasonable

supervision of the class by Mrs. Kenny at the material time and

that the injury inflicted by Azmi bin Manan on the infant plaintiff

was caused by her negligence. It is established that Azmi bin

Manan was a playful and mischievous boy who used to go round

and disturb other boys especially those sitting at the back and

had either Mrs. Kenny or the form teacher bothered to find out

she would at least have discovered that Azmi bin Manan had

been carrying a pencil with him when he wandered about in the

class-room and therefore ought to have warned him and the

class as a whole not to play with sharp pencils. As it was, such a

warning was given only after the incident. Mrs. Kenny was not

attending to any particular pupil and if she had paid proper

attention to what was going on at the back of the class she

certainly would have noticed that Azmi bin Manan was missing

from his desk and found out what he was up to. Mrs. Kenny knew

that Azmi bin Manan was playful and as she ought to have

known also of his propensity

to play with sharp pencils it was her duty to take precautions to

prevent him from causing any possible injury to other pupils in

the class which she had not taken.

Before us it was agreed that this was not a case of breach of the obligation of the school teacher to maintain that degree of discipline which would enable her effectively to perform her function as a teacher, but one of lack of supervision on her part in that she had failed to check or prevent a recalcitrant pupil from wandering about in the classroom. Therefore the issue here is whether there was evidence on which the court could conclude that the injury to the plaintiff was causally related to any negligence on the part of the appellants. Counsel on behalf of the appellants submitted that there was none. The trial judge held there was. The question arises how much supervision is required of a school teacher in a classroom in order to protect the pupils from molestation and other risks of injury whatever their source.

It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is that which a careful father with a very large family would take of his own children (see Ricketts v. Erith Borough Council [1943] 2 ALL ER 629, 631. It is not a duty of insurance against harm but only a duty to take reasonable care

for the safety of the pupil. The duty is aptly described by the learned Chief Justice of Victoria in the judgment of the Full Court in Richards v. State of Victoria [1969] VR 139, 141 when he said:

The duty of care owed by (the teacher) required only that he

should take such measures as in all the circumstances were

reasonable to prevent physical injury to (the pupil). This duty not

being one to insure against injury, but to take reasonable care to

prevent it, required no more than the taking of reasonable steps

to protect the plaintiff against risks of injury which ex hypothesi

(the teacher) should resonably have foreseen."

In that case the plaintiff suffered brain damage as a result of a fist fight which occurred at a High School in a classroom and in the presence of a teacher. Evidence suggested that the particular teacher had some difficulties in maintaining discipline in the past and that, on the day in question, the blow which caused serious injuries to the plaintiff had been preceded by an argument, a scuffle, and then a fight.

The law does not attach strict liability on a school teacher for the torts of his/ her pupil, but only on proof that he/she had failed to exercise reasonable care in controlling the pupil such as would have avoided the injury to the plaintiff. Since that is a matter of evidence and inference, great care needs to be taken to see that the breach of the duty of care must be causally related to the injury received. Thus Lord Porter in Bourhill v. Young, [1943] AC 92 Denning LJ (as he then was) in King v. Phillips, [1953] 1 QB 429 and the Privy Council in The Wagon Mound [1961] AC 388 have expressed the view that the test of liability for shock is foreseeability of injury by shock. In The Wagon Mound, supra, it was held that if the damage which materialised was damage by fire, then for the defendant to be liable he must have been able to anticipate damage by fire; that he could anticipate damage by fouling the wharf's slipways was held not to be enough. Since that case the principle that the damage sustained must not only be caused by the wrongful act, but must be damage of a class or character reasonably foreseeable as a possible result of that act is now firmly

established. There must be testimony from which it is a logical and reasonable inference, and not mere speculation or conjecture, that the school teacher's act contributed to the injury. And, of course, in deciding this matter, it is relevant to take into account common experience in a big school classroom consisting of 40 pupils. Therefore for a plaintiff to succeed in a case such as the present he must adduce direct or circumstantial evidence which tends to show not only how the accident happened but also that the injury was the result of some conduct on the part of the defendant. Whether the evidence permits a logical and reasonable inference that the defendant's conduct had some effect in producing the injury is a question of la w which this court can decide. Bradford v. Robinson Rentals, Ltd [1967] 1 All ER 267 illustrates the working of these principles. In that case the defendant employers carelessly exposed the plaintiff van driver to extreme cold in the course of his duties. In consequence he suffered frost-bite. The court held that the defendants exposed him to severe cold and fatigue likely to cause a common cold, pneumonia or chilblains, and that frost-bite was of the same type and kind as the harms foreseeable, so that the defendants were held liable.

In the present case, in considering whether or not the appellants were in breach of their duty of care to the plaintiff it was necessary for the trial judge to consider first whether the risks of injury to the plaintiff were reasonably foreseeable and secondly, assuming it was, whether the appellants took reasonable steps to protect the plaintiff against those risks. It is unfortunate that the trial judge did not clearly indicate in his judgment that these two questions were separate and should be dealt with by him separately.

In my judgment, only the first question needs to be considered. There is evidence that the class never lacked supervision. The form teacher and Mrs. Kenny knew of Azmi's propensity to leave the desk and wander about and when they noticed it they immediately asked him to return to his desk which he did. But there was no evidence that they knew that Azmi was a bully because no pupil had ever complained to either of them. The trial judge held that Mrs. Kenny was negligent in failing to give proper attention to the class all the time, and that if she had paid proper attention to what was going on at the

back of the class she certainly would have noticed that Azmi was missing from his desk and found out what he was doing and thus would have prevented the injury to the plaintiff. The question here is whether there was evidence from which a logical and reasonable inference could be drawn that as a result of the teacher's momentary inattention the injury to the plaintiff was reasonably foreseeable. In other words, according to the trial judge, there was evidence on which he could conclude that the injury to the plaintiff was causally connected with her wrongful act of momentary inattention. With due respect to the trial judge the evidence fails short of the requirement that the injury sustained by the plaintiff was of a kind or type of class reasonably foreseeable as a result of Mrs. Kenny's wrongful act, assuming she was wrongful.

The sole question in the present case is a question of causation. In my judgment it cannot be said that the particular teacher carelessly exposed the plaintiff to injury of the class or type that could reasonably have been foreseen. If the injury which resulted was injury by the sharp end of a pencil, then for the appellants to be liable they must have foreseen injury by the sharp end of a pencil. A pencil is not a dangerous article. All pupils use pencil in classrooms. Indeed the trial judge accepted appellants' contention that to say that there was a duty by them to instruct each and every pupil on the proper use of a pencil was to stretch things to a ridiculous extent. Again, assuming the injury to the plaintiff's eye was in fact caused by a wrongful act of the teacher - for not being attentive in class all the time - it cannot be said that it was reasonably foreseeable that the injury of this class or character was a reasonably foreseeable result of such a wrongful act. In my opinion, I cannot conclude as a matter of evidence and inference that more probably than not constant vigilance in the classroom would have prevented the injury which the plaintiff in fact received. There is no factual basis of the causal connetion between the step the trial judge was entitled to think the teacher ought, in the performance of her duty of care, to have taken, and the injury of which the plaintiff sustained. Because notwithstanding the proper exercise of supervision a recalcitrant pupil may act to the injury of a fellow pupil, it is prudent to see that the necessary causal relationship is made out. The effect of constant

vigilance in class as a method of preventing a recalcitrant pupil from wandering about is often such a debatable matter that the causal relation between the lack of supervision and the injury caused to a fellow pupil may not be a matter of evidential probability but be no more than a matter of mere speculation.

Appeal allowed.