Christopher Brown v. North Lanarkshire Council [2010] CSOH 156

Proof on liability:- The pursuer was the father and guardian of Thomas Brown, who was born on 13 August 1992. On 3 April 2003, Thomas was a pupil at Ladywell School, Motherwell. On that day, he was engaged with 2 other pupils in painting a large sheet of paper on the floor of a classroom. The children were working in an open plan classroom, under the supervision of two teachers. Whilst Thomas was engaged in this desk, one of the other children bumped into him, causing him to fall on the paintbrush of the third child. The children had been provided with long, thin paintbrushes and the end of the paintbrush penetrated Thomas's left eye and brain, resulting in blindness, left-side paralysis and brain damage.

It was not disputed that the defenders, and the teachers working for them, owed a duty of reasonable care for the safety of the children in their care, but there was a dispute about the standard against which that standard should be judged at common law.

Having heard evidence, the court ruled that the risk in this case arose not from the use of the brush in itself, but from the circumstances of its use. The factors brought into play by its use on the floor created the foreseeable risk of injury, in the court's opinion. This factual matrix of relevant circumstances creating the foreseeable risk included the fact that the brush was a long, thin, tapering, sharp, pointed object; that it was not being used at desk level, but on the floor; the children were kneeling on the paper to work, with the sharp end uppermost; the children were not only in a situation of close proximity to one another, but were also expected to move back and forwards across the paper, with the brush in their hands. The court noted that it was against this factual background that the risk of foreseeable injury was to be assessed.

The court noted that no consideration was given by the teachers to the role which the brush might play in the activity, and taking all factors into account, the court concluded that the risk of some sort of penetrating injury from the brush was a real and foreseeable one. First plea-in-law sustained for the pursuer; quantum to be set at a later date.