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Kane v. Kennedy [1999] IEHC 142 (25th March, 1999)



JUDGMENT delivered on the 25th day of March 1999 by Mr. Justice Declan Budd

1. The news of the death of Joe DiMaggio came while I was writing this judgment. His record streak in 1941, when he got a hit in fifty six consecutive games, still stands. His grace at the plate and his defensive qualities at centre field, his leadership of the New York Yankees to victory in nine of the ten world series in which he led them, and above all his gentlemanly conduct made him a legend in his own lifetime. I wonder what he would have made of the problems with which I have been confronted in resolving the conflicts of evidence presented by what followed the strike by Alice Dunne during the game of rounders played in the sports hall of a convent school in Glasnevin on the morning of Tuesday 21st May, 1996.

2. Rounders is described in the O.E.D. (second edition) as "a game, played with bat and ball between two sides, in which each player endeavours to hit and send the ball as far away as he can, and to run to a base or right around the course without being struck by the fielded ball." In 1854 Dickens in a letter referred to "the keeping up of a "home" at rounders" . In 1862 the Dublin University magazine said:- "what schoolboy has not played rounders in his youth?" I have little doubt but that a game like rounders with bat and ball has been played since Neolithic man came out of his cave onto a grassy sward. Rounders was mentioned, along with baseball, in a 1744 publication "A Little Pretty Pocket-Book" and the sport was explained in detail in the Second Edition of "The Boy's Own Book", published in 1828. Rounders was played in both England and Ireland and is, almost unquestionably, baseball's immediate ancestor. Henry Chadwick was an Englishman who wrote a historical piece for Spalding's Baseball Guide in 1903, in which he asserted that baseball had derived from rounders. His publisher, A.G. Spalding, was insistent that baseball had to have a thoroughly American origin and called for a Commission of Investigation which decided that the great American pastime had been invented by Abner Doubleday. Thus Chadwick's historically correct assertion led to the creation of a total myth. No doubt rounders has origins stretching back into the mists of time in this country. At the founding of the Gaelic Athletic Association Archbishop Croke wrote by letter of 18th December, 1884 deprecating the import from England of manufactured goods, fashions, accents, literature, music, dances, mannerisms, and games and pastimes. I quote:- "ball playing, hurling, football kicking according to Irish rules,' casting', leaping in various ways, wrestling, handy-grips, top-pegging, leap-frog, rounders, tip-in-the-hat, and all such favourite exercises, and amusements, amongst men and boys may now be said to be not only dead and buried, but in several localities to be entirely forgotten and unknown. And what have we got there instead? We have got such foreign and fantastic field sports as lawn tennis, polo, croquet, cricket and the like - very excellent, I believe, and health-giving exercises in their way, still not racy of the soil, but rather alien, on the contrary, to it, as indeed, for the most part, the men and women who first imported, and still continue to patronise them." (My underlining). The antiquity of the playing of rounders in this land is borne out by the Archbishop's letter and confirmed by the inclusion of a whole section on the Rules of Rounders in the rules prescribed by the GAA for that game. While the GAA Rules for Rounders were written in the context of rounders being an outdoor game, nevertheless rounders has been successfully adapted as an indoor recreation. I stress at the outset of this judgment that I do not accept the premise that the rules of rounders cannot be adapted and modified to ensure that rounders can be safely played indoors particularly with the advent of large spacious sports halls. I refute the suggestion by Senior Counsel for the Defendant that a finding adverse to his client in this case would be the death-knell for the playing of rounders indoors in this country. Each case has to be decided on its own merits and in accordance with law.

3. The Plaintiff is a sixteen year old school girl who was born on 24th November, 1982. She was injured in an accident during a game of rounders in the sports hall of her school on the morning of Tuesday 21st May, 1996. The Defendant is sued as the nominal representative of the secondary school.

4. Liability is strongly in issue. However, quantum has been agreed subject to the outcome on liability.

5. The Plaintiff was then aged thirteen years and was in first form when she was injured during the first class of the morning while she was playing rounders in the fine spacious sports hall under the supervision of an experienced P.E. teacher, being one of the two P.E. teachers in this girls school which had over eight hundred pupils at that time. The Plaintiff was fielding at the time of the incident. While there are several conflicts of evidence, it is common case that the Plaintiff ran with the ball to and past the home base cone and then collided with the brick wall known as "the entrance wall" between the entrance door to the hall and an alcove or store-room. She suffered facial injuries and was taken by ambulance to the Childrens Hospital in Temple Street. Under general anaesthetic her wounds and abrasions were cleansed and sutured. She had abrasions over her left forehead and nose and a deep laceration below her nose. Her injuries are described in the Reports dated respectively 16th August, 1996 and 22nd October, 1998 from Michael J. Hurley FRCS, consultant plastic surgeon. An impression of how her face was affected by the impact with the wall can be gained from Mr. Hurley's helpful drawing made at his examination of her on 15th August, 1996. This depicts the abrasions and scars in pink. There are also four photographs, which her father took, of the Plaintiff's face showing the damaged facial areas not long after she had been sutured. I mention both the drawing and the photographs as I believe they assist in giving a clue as to the Plaintiff's direction of travel before impact. This is an indication which is not dependent on the resolution of the conflict of evidence from eye witnesses in the hall.

6. The layout and scene in this 91' by 44' hall (built about eleven years ago) is depicted in David Semple's album of photographs 1 to 7 and in Joseph Lennon's three photographs taken on 26th February, 1997; (with the proviso that the three written descriptions in this album as to what is depicted are the Defendant's version of matters which are strongly in dispute).

7. The case made on behalf of the Plaintiff is that rounders should not be played indoors and that, secondly, if it is played indoors, then the diamond should have been set out in the middle of the hall so that the home base would be a safe distance from the wall, and certainly more than three or four feet away from the wall referred to as the "entrance wall" depicted in DS photo 1.

8. In the course of the evidence a number of areas of conflict emerged. I propose to outline the relevant evidence given by each witness and then to give my conclusions on at least some of the aspects in contention. However one matter can be disposed of at the outset. Having listened to the sports experts I have no doubt that rounders can be adapted so that it can be played safely indoors in such a spacious hall. Care needs to be taken to adapt the rules and to set out the diamond with the bases a safe distance from walls or other obstructions. Manifestly instructions should be given to the players to ensure their awareness of the adaptations to the rules because of the confined space, the presence of surrounding walls and also the use of cones to mark the bases.


9. The Plaintiff Nicola Kane said that she had started in the school in the previous September of 1995. At the start of their P.E. class that Tuesday morning the girls had asked if they might play rounders outside. Their P.E. teacher had said that they might play rounders indoors but not outside. She, Nicola Kane, had never played rounders indoors or in this hall before. Four cones were used to mark the four bases and she indicated that the home base cone was on the red and white lines in the position of the blue circle marked on DS photo 2. She said that a cone like the blue one shown in DS photo 2 was used. Although the only activity going on in the hall was the game of rounders, she said that only half the area was used; the P.E. class was for forty minutes from 9.00a.m. to 9:40a.m. After they had changed into tracksuits in the changing rooms they came out and sat in their gear which the P.E. teacher inspected. She then instructed them as to the rules. They sat in the hallway which is visible on the other side of the entrance door in photograph DS 1. Her teacher had explained that they were not to throw the ball at the striker or at the base. The girls had said that when they played the game at home one could throw the ball but the teacher had told them that they must run and hit the base with the ball in the hand. The Plaintiff's recollection was that while there were twenty four of them in the class she could only remember four pupils being on the batting side, namely Joanne O'Rourke, Alice Dunne, Amy Maher and some other girl and she recalled there being only three fielders namely herself, Jennifer Reilly and Amanda Clarke. Other girls, whom I took to be in a third team, were in the alcove or storeroom, which can be seen in DS photo 1 as a recessed area with equipment in it. The Plaintiff said that Amanda was the pitcher and Alice was batting. They were using a tennis ball and a tennis racket. Alice struck the ball which bounced off the end wall and went towards a door on the right side looking from the direction of the entrance door. She, the Plaintiff, had fielded the ball and threw it over-arm to Jennifer who collected the ball after it had bounced and then threw it back to the Plaintiff who caught it in the area between first and home base. She was running and got to home base before Alice and hit the cone with the ball in her right hand. "She was running when she touched the cone with the ball and had no room to stop and hit the wall and fell back and landed on Alice". The teacher was at the alcove with other girls. The Plaintiff's lip came apart from her nose and dropped and people came around her and held her lip. Jennifer, in particular, held her lip and Amanda was holding her. She cut her bottom lip and had a sore like a blister but had no damage to her teeth. She thought that she had got to Temple Street Hospital at 9:35a.m. and was sutured at about 3:30 that afternoon. Her father had gone with her in the ambulance and she had received sixteen sutures under her nose. Her father had taken the photographs of her face about two days afterwards. She had had an area of hair loss at the top of her left forehead but that did not worry her now. She had never suffered from headaches before and got headaches thereafter for which she took painkillers. She said that she had a loss of sensation between the tip of her nose and her upper lip and that the scar goes purple in the cold so that she covered it with her jacket. In the cold the scar area pained as if somebody was pinching her. She also mentioned that the left side of her lip was lower than the right with what she called a very slight droop.

10. She was cross-examined by experienced Senior Counsel. She said that she was not sure if there was a third team and that she was not sure of the number on her team but could remember three as being on the team with Amanda as the pitcher and another girl (Jennifer) between second base and the fire door. She said:- "you wouldn't be able to fit a catcher behind the striker" . She felt that the incident had happened at about 9:25a.m. and that it was the first strike, not the last of the first person on that team, namely Alice Dunne. Indeed, she said that Alice Dunne was the first person to strike and that the Plaintiff's own team had not batted at all yet. She denied that she had been down the hall to the left as one looks in the entrance door and also refuted the suggestion that they were told to throw the ball at the cone. She was adamant that the teacher had told them not to throw the ball as if it hit the girls it would hurt them. Her intention was to hit the cone with the ball and so her head was facing down. As she looked up she hit the wall, fell back and fell with Alice. She was shown diagram B which depicts home base as 16' out from the entrance wall. She said that she was not sure if home base was an orange cone but she would have had room to stop if the cone had been there (i.e. 16' from the wall). There was 3' only. She felt that the diagram was incorrect as they were only using about half the hall. It was suggested to her that Alice had stopped between third and home base and she replied that Alice was coming to home base when she had landed back on Alice and had landed on Alice's leg. She had never played rounders indoors since. She remembered falling on top of Alice and Alice saying to the teacher:- "there is blood" . The teacher then helped her to walk out into the hall and held her lip up and the school principal had come. She reiterated that if home base had been 16' away from the wall then she would not have hit the wall.

11. At this stage I was informed that quantum had been agreed subject to liability.

12. Jennifer Reilly gave evidence that she was in the same class as the Plaintiff and was thirteen at the time of the incident and was now sixteen. She was on the same team as the Plaintiff and Amanda Clarke. She didn't remember five of them but did remember the three. She said that the base cone was the width of the witness box out from the wall i.e. 3'3". She was positive that the cone was no more than 4' out from the wall and had been put there by the P.E. teacher. She was asked to place an X on an unmarked DS photo 3 as to where the cone was. She marked this on DS photo 3 as being 3'2" out from the entrance wall. She said that if the cone had been 16' away from the wall then Nicola would have had room to stop. Her team were fielding. Amanda Clarke was throwing and Alice Dunne was batting. Joanne O'Rourke and Amy Maher were waiting to bat. She could not recall where Alice hit the ball but she did recall Nicola hitting the base with the ball in her hand and then hitting the wall and falling back. She added that the P.E. teacher had told them to carry the ball with them and to hit the cone; that it was dangerous to throw the ball at the cone. She had played rounders before outside but had never played indoors. She said simply that Nicola could not stop because the cone was too close to the wall. Under cross-examination she said that Alice was the first player to strike on either side and no other game had been played before that game. It was about 9:25 to 9:30 a.m. that the incident occurred and the class was due to end at 9:40a.m. She explained that people would be late for first class and they were never changed before 9:15a.m. and that the P.E. teacher then checked their gear and clothing and told them the rules. When it was suggested to her that it was in fact the last game and the last strike of the day, she denied this and was adamant that it was the first strike of the day. She had been asked about two years ago by Nicola to come in to see her Solicitor. She said that the P.E. teacher was careful to ensure that they were wearing the proper gear and that those playing were segregated from those not playing. She was categoric that it was not true to suggest that the home base was 16' out from the wall. She had been fielding near second base (which she and Nicola called third base) and Alice had passed her. She remembered that Nicola had collected the ball but could not recall where Nicola had gone. She said that Nicola was a fast runner and was a good athlete. She, Jennifer, did not recall the ball being in her hands. I should add that I do not set much store by this as it only became relevant late in the day because of the conflict of evidence and I expect that her recollection of the incident would be focused on what became of Nicola.

13. Joanne O'Rourke gave evidence that she was on the same team as Alice and was due to bat after Alice. She remembered home base being about 4' or 5' away from the entrance wall, 5' at the most. She confirmed that the P.E. teacher had said to carry the ball and hit the cone and not to throw the ball as you might hurt someone. The instruction was to keep the ball in one's hand as one was tipping the cone. She, Joanne, had been standing beside the home cone. She was shouting for Alice to run around. Alice was at the third cone and she remembered Nicola running to the cone and then going into the wall. When Nicola hit the wall Alice was nearly home. Nicola had hit the cone which went flying over and then Nicola ran into the wall as she could not stop because she had no room. When asked to put a mark on a clean and unmarked DS photo 2, she put her mark in the same spot as the Plaintiff had indicated with her circle. She said that she was standing beside the cone and that it was not further out from the wall. She had been running from side to side and the cone was to her left hand side when Alice came by. She thought that it was the first strike and that Alice was the first to bat. She gave a vivid description of Alice running into Nicola and how she remembered Nicola sitting on top of Alice's leg; Alice was leaning against the wall on the ground. Alice was sitting on the ground with her back against the wall and Nicola was sitting on top of Alice's leg after Nicola had hit the wall. It was Nicola's face which hit the wall. She and the P.E. teacher had picked Nicola up off Alice and there was blood on her face. She thought that her nose was bleeding and her head was cut. They had brought her out to a seat in the hall. Jennifer had stayed with Nicola while she Joanne had gone back to the rest of the class.

14. Chronologically David Weldrick , a lecturer in physical education at the University of Limerick, was the next witness. However, he was interposed and I propose to set out the evidence of Alice Dunne and Martin Kane before I return to David Weldrick. Alice Dunne was another first year pupil, then aged thirteen, involved in this game of rounders. She had never played rounders indoors before and thought it was the first time she had played rounders at school but was not sure. The P.E. teacher had laid out the cones and had told them to hit the cone with the ball in the hand. The teacher had done a roll-call after they had changed and she had checked their gear. They were only using the half of the hall nearest to the entrance door. She also indicated by marking DS photo 3 where the home base cone was and marked a spot close to where Joanne Reilly had said it had been on the red and white lines three inches apart which are about 3'2" out from the entrance wall. She was emphatic that the home base cone was not 16' out from this wall. She said that when Nicola went into the wall she, Alice, could not stop either and went into Nicola's back. If the cone had been out then she could have got around. She was not sure if anyone had batted before her but it was what she described as "her first shot" . The first throw to her was by Amanda and she, Alice, hit a fair shot and dropped the racket and knew that she was going for a home run. She had got to third base and Nicola was in front of her. She, Alice, was close behind Nicola and went into Nicola's back after Nicola hit the wall. She, Alice, had hit into her. The two of them fell on to the ground and Nicola ended up in her lap. She felt that she was not near the wall when she ended up on the ground and in fact suggested that she ended up on the ground further from the wall than the cone. Both she and Nicola had been going at a good speed and she had hit into Nicola's back at a fast speed. Indeed, she would have gone into the wall if Nicola had not been there. It was the teacher and one of the girls who had lifted Nicola off her. She confirmed that there had been a roll-call and that the teacher had checked their gear in the hallway after they had changed. There had been a discussion with the P.E. teacher as to the rules which took a few minutes. She was not sure if she was the first to take strike but she was not the last as Joanne was after her and never got a strike. She did not remember that the run meant the difference between winning or losing. Others of her team could have taken strike before her but she did not remember people going before her. She was not sure what time the incident happened. Nicola had hit the wall and bounced back and ended up in her lap; she was definite that she had hit into Nicola's back and that Nicola ended up in her lap. As the teacher had taken Nicola off her lap she had told the teacher that Nicola's nose was bleeding. She reiterated that she had gone into Nicola's back and that there was no room for her to go around. No blood had got on her white tee-shirt as Nicola had bled onto her own clothes and somebody had got a tissue. At the end of her evidence I asked about whether there had been any discussions between the girls as to where the cone was placed. She answered candidly that they had discussed in the gym where the cone was. She recalled that she had no room to stop as well. Nicola had asked them to write down where the cone was. She thought that this was at the start of the next school year in September 1996 and that they had looked at the lines on the floor of the gym and reckoned where the cone was.

15. David Semple was the next witness in time sequence but I will deal first with the evidence of Martin Kane, the Plaintiff's father and next friend. He said that his wife received a phonecall from the principal of the school at 9:20a.m. His wife had called him from his bed and he had looked at his watch. He went straight to the school in his car and then went with the Plaintiff in the ambulance. He believed they arrived at the hospital at 9:40a.m. When he had arrived at the school Jennifer Reilly was with his daughter Nicola and the P.E. teacher.

16. David Weldrick said that he had visited the hall in the company of David Semple and Joseph Lennon on 23rd March, 1998. The Plaintiff had been there with her mother. He outlined the rules of rounders as being a game which is usually played with nine players on each side trying to obtain the most number of rounders, i.e. a home run around the three bases and back to home base, over two innings. The bases are usually laid out in a diamond shape but the dimensions can vary. The Plaintiff had set out cones to indicate the dimensions for him. Her home base was about 3½' from the entrance wall and the distance from the other bases was just over 28' as shown on the diagram A of floor. Mr. Lennon had laid out the diamond in the layout as suggested by the Defendants with the home base 16' from the entrance wall and with distances between the bases of over 33' as shown on the diagram of floor B. He had coached rounders and the University of Limerick provided the venue for rounders championships. He had never in his experience of twenty five years of teaching practice come across rounders being played indoors. He did not regard rounders as being a suitable game to be played competitively indoors as runners may be contesting ground fiercely in order to get to the base first. He had never seen marking for rounders indoors. He stressed that there is likely to be competition as to who can get first to a base and accordingly one must allow a sufficient safe area so as to avoid collisions between players and obstructions such as walls. He made the distinction between rounders, where the competition is strong to reach a base first, and other games such as basketball, soccer and hockey which are played indoors where the objective is to keep possession of the ball and to score a goal. There had been evidence that Tuesday 21st May, 1996 had been a sunny day and his view was that, since there were suitable grass areas and two tarmac basketball courts, these would have been much more suitable venues for rounders. He was emphatic that rounders was not a suitable game to play competitively in a confined space. Furthermore in his view it was not good practice to put pupils into a competitive situation straight away before they had become used to and learned the rules of the game particularly in respect of safety. One needs to develop the skill, the fitness and the sense of space and tactical awareness of youngsters before allowing them to compete in a confined space. If the weather was inclement then one might have no alternative but to teach the basic skills in respect of batting, bowling and fielding indoors. With rounders being played by thirteen year olds in a competitive spirit then, he said, "safety goes out the window" . He did not approve of competitive rounders in an indoor facility. He did not favour the use of cones as bases as they can be moved inadvertently and also they cause the fielders to run with their faces down. A stooping runner looking down has even less time to focus on the wall. The height of the cones indicated by the Plaintiff was 1'4" high. Hitting the base with a ball in the hand would be quite normal and it is not uncommon for fielders to run to touch the base. With a taped base on the floor one merely put one's foot on it. Under cross examination he agreed that student teachers were told to be flexible and to improvise but he added that they must not compromise on safety. He reiterated that competitive rounders is not adaptable to an indoor facility. Problems arose in rounders because two players would be sprinting to out-pace each other to reach the base. He regarded rounders as being different from indoor soccer, hockey, badminton, volleyball and netball as in rounders the game was won by getting to the base first and not simply by winning or losing possession of a ball. He was surprised to learn that the P.E. teacher had attended a conference at the University of Limerick run by the Department of Education in the Summer of 1995 in which she had participated in an indoor rounders game. He had coached rounders and his own children and his parish had played rounders in community games.

17. David Semple, Consulting Engineer, had inspected the hall on 19th November, 1996, 21st January, 1997 and on 23rd March, 1998, on this last occassion with Mr. Weldrick. It is a fine hall at least 90' x 60'; big enough to accommodate four badminton courts. He described his seven photographs. He was of the opinion that, allowing for the enthusiasm and competitiveness of thirteen year olds, if the base cone was only 3' to 5' out from the entrance wall then this cone would have been far too close to the wall for safety. Senior Counsel for the Defendants intervened to concede that if the home base cone was in fact only 3' to 5' out from the wall then it was too close and dangerous. The measurement from the entrance wall to the red lines, depicted in DS photo 3, was 3'5". It will be recalled that the Plaintiff, Alice Dunne and Jennifer Reilly all said that the home base cone was placed at this point i.e. about 3'3" from the wall. In DS photo 1, there is a red cone which Mr. Semple says is 17' out from the wall. This red cone is placed where the P.E. teacher originally told Kevin Foy, the loss adjuster, was the location of the home base cone at 17' out from the wall. In fact, I think that the exact measurement from the wall to where the teacher placed the cone was 5.24 metres. (It may seem strange that the teacher's account of the incident to the Defendant's loss adjuster should have become part of the evidence but the Defendant's Counsel indicated that the loss adjuster's report should be put into evidence in its entirety and thus it came to be adduced without objection). Mr. Semple was shown the photographs of the Plaintiff's face and Mr. Earley's diagram of her injuries. He postulated that her left forehead hit the wall causing the abrasion to her forehead on the bricks. Her head was whipped back and she sustained the laceration at the base of her nose. It was feasible that she saw the wall at the last moment and moved her head back and as her face was swinging back there was a dragging movement across the bricks which caused the splitting above her upper lip.

18. At the conclusion of the evidence of the witnesses called by the Plaintiff, Counsel for the Plaintiff put her case on the basis of four points. First, he submitted that the cone had been dangerously close to the wall. If the cone was within 5' of the wall then this was dangerous and there was no question of any contributory negligence. Secondly, he submitted on the basis of Mr. Weldrick's evidence that rounders was an outdoor game and could not be safely modified for indoor competitive games. Thirdly, he submitted that there was inadequate instruction to the girls with regard to the safety aspects of the game. Fourthly, he made the submission that the girls should not have been told only to hit the cone which was 12¼" high with the ball in the hand as this had the corollary that the child would be bending down to the cone and in a stooped position while running.

19. The first witness to be called by the Defendants was Peadar O'Tuathain the Secretary of the Rounders Association of Ireland. He explained that the Association was a subsidiary of the GAA which had been formally constituted in 1970 although rounders had been one of the Gaelic games from the foundation of the GAA and indeed was specifically mentioned in Doctor Croke's letter dated 18th December, 1884. Furthermore, a portion of the Rules of the GAA was devoted to the game of rounders. He said that in about 1970 the game had been modified for twelve year olds; it used to be played with a hurley ball but a concession had been made that ladies could play with a half solid rubber ball which in reality meant a tennis ball. He had refereed his first match in 1958 and had been involved in rule making committees since 1957. He had visited, coached, refereed and advised on rounders in schools throughout Ireland and was aware that rounders had been played competitively in community games in twenty six of the thirty two counties. Many schools did not have a field and so utilised such space as there was available. He had originally been a photographer in the Air Corps at Baldonnel but in the 1960s he had qualified at St. Joseph's College in Belfast, a part of the Queen's University Belfast, which was a teacher training college with a P.E. department. He was aware of many schools where he had advised on rounders being played in the gymnasium. An indoor version of rounders was played throughout the country. He had visited and inspected the hall in question and found it to be large, clean and tidy with walls free of clutter. He could say that it was at least twice the size of some of the halls which he had seen. He was aware of diagram B, the teacher's layout, which leaves ample distance between the home base and the wall. He had seen rounders played in smaller areas and he regarded the minimum distance as being one pace from the wall to a base. The layout for the diamond should suit the particular hall. He would want at least one pace out from the wall or 4' or 5'. It was a standard rule that the person should hold the ball to touch the base, but either throwing or touching with a tennis ball was acceptable. In about 1980 or 1981 he had actually given lectures on rounders for a week in Thomond College in Limerick and he had used the indoor facility there. It was preferable to play the game outside but a hall could be used if the weather was inclement. He had known adaptations of the game of rounders where participants had used a bean bag and where the bag or ball was hit with a fist or with a stick or even a foot. Rounders was adaptable with curtailment of the space and the number of players. He ventured that 4' to 5' from the base to the wall would be relatively safe. However, he modified this by saying that, with a thirteen year old age group, who take longer paces and run more aggressively and with greater self confidence, although they would be running in at an angle, nevertheless 4' to 5' was not entirely satisfactory. If the wall was close to the base then it would be good practice to warn teenagers of the risk; for example, if the base was 4' to 5' from a wall. If the game is being played indoors then there is a need to modify the rules so as to take account of the natural competitiveness in thirteen year olds. It would not be good practice to go into a competitive game straight off. Since rounders is essentially a field game it has to be adapted for indoor play. He agreed that it was readily foreseeable that one would have races between a batter and a fielder to a base, particularly to home base, and there was risk if the wall was too near the base.

20. The P.E. teacher had eighteen years of experience in teaching in the school. She had attended Thomond College for four years qualifying in P.E., drama and English. She taught all the classes in the school and was a member of the P.E. Association of Ireland and had attended their weekend conferences. She explained that within the school she and her colleague had adapted rounders to be played either on the green outside or in the gym. With a restricted time of only forty minutes they had adapted to one innings for each side with three strikes per batter. They used a racket rather than a bat as it was easier to connect. Rounders was a most popular game with the girls and engendered great spirit and competitiveness. Rounders had been played indoors extensively over the years. In 1995 she had attended an in-service course run by the Department of Education in conjunction with the P.E.A.I. in Limerick and she and the other P.E. teachers from all over Ireland had taken part in adapted rounders. She said that she and her colleague had a specific layout which they used indoors and they used four orange cones from the store room. She took a clean copy of DS photo 1 and marked with a blue cross where each of the four bases were. She said that the home base cone was in exactly the same place as she had put it before. It was incorrect to say that the cone was within 5' of the wall; that would be very dangerous. The two side cones would be between badminton courts two and three. She had thought that the base cone was 13' to 15' out from the wall. It was not correct to say that only half the hall was used. She had never done that. The class began at 9:00a.m. and was scheduled to finish at 9:40a.m. She had instructed the seventeen pupils present and there were two teams of six and one team of five. The girls had been fairly prompt and had gone into the changing room.. She could not recall when she actually set up the diamond. The girls would have taken about five minutes to change. She could not recall why they did not play outside. She had decided on rounders before the class as she would plan beforehand. Rounders is a frequent and popular activity. She checked their gear and instructed them as to what to do and she would have given them safety instructions. She would have told them to be mindful of restrictions of space and that it was harder to get a home round indoors. She would have told them to be aware of others at the bases and not to charge at a cone. She would have demonstrated that a thrown ball travels faster and would have told them to throw the ball to a team mate to run somebody out. They were prohibited from throwing the ball at a player. The rounders began at about 9:15a.m. with two teams of six and one of five and they all played one another. At about 9:34a.m. Alice Dunne was the striker. The teacher said that she was at the side of the store room under the basketball net (See DS photo 1). Alice struck the ball and ran to first base. The ball went down to the left end of the hall; somebody ran after it. Nicola called for the ball and it was thrown to her. Nicola was around first base; she caught the ball and looked neither right nor left and ran for the cone and tipped it. As Nicola touched the base, she, the teacher, looked for Alice as she was concerned that Nicola was running with her head down and focusing totally on the cone. Alice was slowing. Alice's team would have gained three points and her team would win if she had got a home run. The rest of the class were cheering. Nicola hit the ball off the cone and still did not look up. She passed with the cone on her right hand side. She continued on and still did not look up. She collided with the wall and her legs buckled and she went into a sitting position. The teacher went to her immediately. She calmed Nicola down and tried to ascertain her injuries. Nicola was able to say what they were. The girls converged and the teacher told them to move away and she sent two of the girls to tell the Principal, and she sent two more to get an ice pack. She asked one of the girls to bring Nicola into the foyer. It was by then coming up to 9:40a.m. She stayed with Nicola until her father came. The ambulance arrived and the father went with Nicola in the ambulance. The teacher reiterated that when Nicola was charging towards home base she, the teacher, looked and saw Alice was slowing so she knew that they were not going to collide. The girls had played rounders before but this was the first time that they had played indoors. The only reason for playing indoors would be if the grass was wet or if there was a function such as a funeral in the Convent. She stressed that rounders had been played indoors in the hall for eleven years and that they never used only half the hall. She could recall Nicola running towards the cone which was in the position where it would normally be. She would have explained the rudiments of the game and the game would have started at around 9:15a.m.. She was challenged on the home base cone and the second base both being on diagram B at 16' from the wall whereas first base and third base were at varying distances. She refuted the suggestion that the cone at home base was at 12¼" high. She maintained that it was 3' to 4' high. Senior Counsel cross-examining the P.E. teacher had already protested at her looking for guidance to a person at the back of the courtroom. At this stage he protested again that the witness was looking to make eye contact with a person at the back of the Court. Unfortunately the Courtroom is laid out in a defective modern style so that the Judge's vision of the persons at the back of the Court is obscured by the figures of Counsel. Regrettably, the tried and tested layout favoured by Victorian architects which enabled the Judge to see all the transactions going on in the Court has fallen into desuetude. Since I was not able to see the eye contact being made as alleged by Counsel for myself I have not given credence to his suggestion, particularly as the witness denied that she was looking down the Courtroom for eye contact.

21. She was questioned about the dark blue cone to be seen in DS photo 1. She replied that the dark blue cone had no purpose known to her. She also said that the two small green cones which can be seen in DS photo 5 were used in outdoor soccer but she did not know why they were there in the hall. She said that the red cone, as in DS photo 6, would be used indoors. The green cone as in DS photo 7 was low down. I should add that the significance of the height of the cones is that a fielder would have to stoop lower to touch the ball against the green cone, being about 12¼" high, whereas the red cone would be about 2' taller, thus allowing for less stooping and bending by the fielder in making contact between ball and cone.

22. The P.E. teacher recalled Alice Dunne hitting the ball. It was the last strike of the game. The Plaintiff had already batted. She could not recall who had hit home runs. On further challenge she could not recall the Plaintiff batting. She recalled that a number of games had been played and that a number of girls had batted. It was very exciting and a number of games had been played. She was asked if she could recall any individual batting besides Alice Dunne. She persistently replied in the conditional tense and, despite requests from Counsel to give the Court her actual recollection, she continued to respond on the basis of what she would have recalled. Eventually she said she could not recall what each individual did but she could recall Nicola's team batting. She was asked to recall if she remembered any one person batting other than Alice Dunne. After a long delay, she replied that she could not say specifically who had batted. She could not recall the score but could recall the importance of Alice getting a home run. She was emphatic that the accident occurred at 9:35a.m. and that she had made a note of this. She could not recall if any girl did a one handed catch. To be fair, she explained that only the occurrence (meaning Nicola's injury) was etched in her memory. It was suggested to her that it would have been impossible to have had three games in nineteen minutes but she responded that the changeover would be very quick. She disagreed with the Plaintiff's assertion that the Plaintiff had retrieved the ball as she, the P.E. teacher, could recall the ball being collected at the end of the hall and passed to the Plaintiff. She challenged the assertion that the ball had gone to Jennifer Reilly. She believed that when the Plaintiff caught the ball from another fielder she was between home and second base. She, the teacher, was at the side of the storeroom and the Plaintiff came straight at her. It all happened quickly. If the Plaintiff had looked up, she probably would have veered. Subsequently she said that the Plaintiff was not running directly towards her, but that the Plaintiff ran straight at the cone after collecting the ball. The teacher then said that the cone was 13' to 16' from the entrance wall as measured by Mr. Lennon. She said again that she could see the Plaintiff running towards where she was positioned but the Plaintiff was not going to collide with her. The Plaintiff "would have been running very fast" . She, the teacher, subsequently filled in the required form that morning. She was adamant that the cone was not too close to the wall and she said that Alice was wrong in saying that she would have hit the wall if the Plaintiff had not done. She was asked if there was any one person who could corroborate her version of where the home base cone was placed. This should be put in the context that the teacher had said that seventeen pupils were present in the hall according to her roll-call. She replied that she thought it was unfair to ask the girls to testify and she felt that they could not recall accurately where the cone was. They would have an idea as to the general area but would not recall accurately. Also, she intimated that she felt it would be wrong to subject any of them to the experience of having to go to Court. I should add the comment in parenthesis that these girls are now sixteen; that attending Court might be regarded as part of the civic experience; and that the Courts are now accepting even the unsworn evidence of children at times when they are not capable of understanding the significance of the oath. The teacher did not see Alice Dunne cradling the Plaintiff. On the contrary, she saw Alice stopping. She did not see Alice fall at all and she said Alice did not crash into Nicola. She saw Nicola coming at full speed and she just remembered Nicola looking up and colliding with the wall. The teacher confirmed that both Alice Dunne and Nicola Kane were both good athletes with a good eye for a ball. She confirmed that the Plaintiff was good at basketball and so was used to playing in the gym and was used to passing and moving in to space and catching. She could not recall anybody standing in front of or behind the home base cone. The Plaintiff had collided more on her left hand side with the wall due to the angle at which she was coming.

23. The P.E. teacher said that she gave her report on the accident to the school Principal and that she would have done out a copy for herself. This arose in the context that somebody had changed the word "accident" to "student" in one of the copies. She was asked why she had denied discussing the case with the school Principal overnight. She agreed that she had been incorrect in this. I accept her explanation that she was confused and that this confusion led to her giving an inaccurate answer, when she had denied discussing the case with the school Principal overnight.

24. The school Principal said that she had received a message via the secretary of an accident to the Plaintiff in the gym and that an ambulance was needed. She instructed the secretary to phone for an ambulance and she herself contacted the parents. She had meticulously recorded the time of this telephone call as 9:40a.m. and noted this in her diary. She said that there was a bell at 9:40a.m. and she was not sure whether she made the phonecall before or after the bell went. She then went to the sports hall and found the Plaintiff in the foyer with the P.E. teacher with her and giving her tissues for her nose and mouth. The Plaintiff's father arrived and then went in the ambulance with his daughter. The Principal then returned to her office and made a further note to the effect that the Plaintiff's father had come and they had gone to Temple Street by ambulance. The P.E. teacher furnished her report shortly afterwards and the Principal made a third note to this effect.

25. Unfortunately, the Principal only went into the foyer of the sports hall and did not go into the hall so we do not have her observation of where the cones were placed or what cones were being used. She never interviewed any of the girls about the incident or the layout of the diamond. She was clearly an experienced and meticulous Principal. I asked her a rather convoluted question referring to Terence Rattigan's play "The Winslow Boy" and asking her whether she had ever experienced in seventeen years an instance when a group of sixteen year old girls would conspire together to tell deliberate lies or would collude to give perjured evidence. She said that peer pressure had become frighteningly strong over recent years. She had had incidents of girls telling lies to protect a friend in an episode of stealing. Perhaps I should add at this point that I differentiate between a pupil who tells a lie or does not give correct information so as to protect a friend and the more positive and deliberate situation which arises when a group of girls conspire together to invent a scenario and to tell actual lies and to give false evidence on oath. According to the P.E. teacher's roll-call, there were at least another twelve girls present in the sports hall that morning. Since 19th November, 1996 the Defendant's representatives have been well aware that the position of the cones was crucial and that there was also an issue as to which cones had been used. While I can understand a reluctance to involve pupils in litigation, nevertheless as there were seventeen girls at the P.E. class that morning I would have thought that a simple enquiry from a couple of the more mature sixteen year olds who had been in the class as to their recollection of the location of the home base cone would have been sensible. I can appreciate that the school Principal might have taken the view that such an enquiry from her might have been rather daunting to the pupils but there must have been several members of the staff, such as the other P.E. teacher, who could have made such an enquiry in a discreet and sensitive manner. If their response had been confirmatory of the evidence of the Plaintiff, and of the other three girls, then such an enquiry would have obviated the need for expensive litigation and would have precluded the ferocious conflict of evidence.

26. Joseph Lennon is a secondary teacher and sports expert with thirty five years experience including an M.Sc. from Loughborough and a Ph.D. from DCU. He confirmed that rounders had been played in Ireland for many years and is a popular and expanding game. In his view, rounders is perfectly adaptable to such a sports hall. He drew the diagrams of the floor A and B shortly after his second visit on 23rd March 1998. Diagram A shows the layout of the cones as described by the Plaintiff and her three pupil colleagues. Diagram B shows the layout of the diamond as described by the P.E. teacher. He had previously visited the hall on 25th February, 1997 in the company of the P.E. teacher and the Principal. Shortly after his visit he made diagram one showing the trajectory of the ball and the direction in which the Plaintiff ran, according to the P.E. teacher. He had made a note that the P.E. teacher had told him that:- "cone or home base was approx 4.5m from end wall". The P.E. teacher had put a red cross on my copy of diagram B as to where the Plaintiff was when she received the ball and ran for the home base cone. It was suggested to Mr. Lennon that if she continued on the same line then she would have been running almost straight at where the teacher was standing beside the end of the entrance wall at the access to the storeroom. Mr. Lennon said that if she ran to the left of the cone then it would be hard to say with certainty what her line of run would be. While I agree to some extent with this proposition I think that some deductions can be made about the line of run. Mr. Lennon said that on his site visit on Monday 25th February, 1997 he noted "home cone was placed approx 14'9" from end wall" . It seems that on his second visit the cone was placed 16' from the entrance wall. Mr. Lennon also said that if the home base cone was only 3'6" out from the wall then there would not have been space to swing a tennis racket as the batter would need 5' or 6' for safety when swinging the racket. I found this surprising as there would hardly be time for a large back swing and it would be natural for the striker to stand well clear of the wall in any event.

27. The Medical Records Officer from Temple Street gave evidence that the Clinical Record Form on the Plaintiff showed that her Casualty Card had been filled in by a Receptionist at 10:02a.m. on 21st May, 1996. She agreed that one could be waiting fifteen minutes before such details would be taken.


28. It was common case that the standard of care imposed on a school teacher is to take such care of the pupil as a careful parent would take of her own children.

29. While there are several aspects in respect of which there is conflicting evidence there is one matter on which there is consensus between the Plaintiff and the P.E. teacher. The teacher said that the Plaintiff received a thrown ball while between the home base cone and the first base; she put a red cross on diagram B as to where she says the Plaintiff caught the ball. The Plaintiff's own evidence was to the effect that she had been fielding down the hall roughly in line with the entrance door and about two thirds of the way down the hall. She marked my copy of diagram A with a blue cross to show her location. She said that Alice hit the ball which bounced off the back wall and went to the door which is marked fire door on diagram A. She, the Plaintiff, collected the ball and threw it to Jennifer Reilly near second base (which the Plaintiff described as the third cone). Jennifer collected the ball and threw it to the Plaintiff who caught the ball near home base. She was running and got to the base before Alice and hit the cone with the ball in her right hand. Thus both the teacher and the Plaintiff say that the Plaintiff came towards home base from the first base direction. This is consistent with the Plaintiff leaving the cone to her right and running on into the wall and impacting on the wall with her left forehead, her nose and under her nose as her head came back from the initial impact. She would have grazed her forehead on the surface of the bricks. It also explains why the teacher said that the Plaintiff was running towards the wall just to the teacher's right.

30. I have already made it clear that rounders can be safely played indoors providing that modified rules are adopted to ensure safety, particularly bearing in mind that fielder and batter may be competing for the same ground and base at full speed. There are stark conflicts of evidence. For example, was this the first or last strike of the day? What time was it when the injury occurred? Did the Plaintiff end up in Alice's lap? And the crucial question:- where was the home base cone positioned? Several matters are difficult to resolve. For example the discrepancy in respect of the numbers in each team. Secondly, the suggestion by the teacher that Alice Dunne stopped between third and home base is difficult to reconcile with Alice Dunne's evidence that the Plaintiff ended up in her lap. If the incident occurred at 9:35a.m., then it is hard to explain what was happening since the start of the class at 9:00a.m. if Alice Dunne was the first striker. Since the Principal made her telephone call to the Plaintiff's parents at 9:40a.m. after receiving a message via the secretary, who had been alerted presumably by the two girls sent by the teacher, it seems to me that perhaps the incident happened a few minutes earlier than 9:35a.m. After all, the teacher had to establish the extent of the injury and then give instructions to the two messengers. They then had to go to the secretary and explain the emergency and the secretary then had to relay the information on to the Principal who would have had to take stock of the situation and ascertain the telephone number of the Plaintiff's home and then make the telephone call.

31. Certain less controversial aspects seem to me to give a better indication as to what actually occurred. It was agreed that the Plaintiff was an athletic girl. It was common case that she had caught the ball while moving between first and home base. This indicates a degree of agility and dexterity. Even if she was a fast runner and competing and having to stoop with the ball in her hand, nevertheless it seems to me very unlikely that a nimble athlete would go on and collide with the wall if the home base cone was in fact more than 14' out from the wall. I have already pointed out that the Plaintiff's line of run with the ball in her right hand is consistent with her own and the teacher's evidence of where she received the ball and with the teacher's evidence as to where the Plaintiff collided with the brick work.

32. As to credibility, the Plaintiff's evidence as to the position of the cone is corroborated by the three other girls. There was not a scintilla of evidence of a conspiracy. Indeed, on some aspects of the evidence the girls gave differing accounts, such as in respect of the Plaintiff's line of run and as to who retrieved the ball initially. All four sixteen year olds were subjected to cross-examination by experienced Counsel. If they had conspired to concoct a false version of this accident then they would have been expertly and relentlessly exposed. I accept the veracity of the four girls who gave evidence. Their accounts differed in some respects as one would expect of eye witness accounts of an incident. However, they were straight forward and consistent and adamant in respect of the position of the home base cone.

33. In the Sherlock Homes story involving the horse Silver Blaze the decisive clue was the absence of an expected noise - the dog did not bark. There were seventeen girls, who are now aged sixteen, present in the hall that morning. Four of the pupils gave clear evidence as to the position of the cones and particularly as to the fact that the home base cone was at such a short distance from the wall as to be dangerous. One might be forgiven for wondering why none of the other thirteen girls were asked as to whether they agreed with the teacher that the cone was at least 14' out from the wall or with the four girls who gave evidence to the effect that the cone was within 4' from the wall. Counsel for the Plaintiff stressed the failure to call any of the other girls who had been present.

34. Having carefully watched the demeanour of the four girls in Court and in the witness box and having considered the candour of their answers and their unembroidered account of what had occurred, I prefer their version of events on the crucial aspect of the location of the cones. The evidence of Alice Dunne was particularly graphic and credible to the effect that she went into Nicola's back after Nicola hit the wall and the two of them fell on the ground and Nicola ended up in her lap . The Plaintiff's own evidence was given in a straight-forward and candid manner, including a number of admissions against her interest particularly in respect of the injuries sustained. Her evidence was given in a simple, unhesitant, unsophisticated and convincing manner.

35. Accordingly, the Plaintiff succeeds in respect of liability. There is no finding of contributory negligence in the circumstances of the decision in respect of the location of the home base cone. I will hear Counsel as to the appropriate order to be made.

© 1999 Irish High Court

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