Boys will be boys…

July 5, 2009

accident, Negligence

Full Case Report: Orchard v. Lee [2009] EWCA Civ 295 (http://www.bailii.org/ew/cases/EWCA/Civ/2009/295.html)

Other Sources: http://business.timesonline.co.uk/tol/business/law/reports/article6087451.ece; http://www.solicitorsjournal.com/story.asp?storyCode=14095

The case itself concerns an injury to an assistant lunch break supervisor who was patrolling the playground of Corfe Hills School in Dorset on 27th January 2004 when she was struck by a thirteen year pupil playing tag with a friend. The claimant’s case was that running backwards at speed created a foreseeable risk of injury and this should have been appreciated by a boy of the claimant’s age. (Although the claimant brought proceedings naming both boys and the school as defendants, no action was ever commenced against the school).

In Poole County Court (7PH00119, 30th May 2008), her claim was rejected as merely a simple accident caused by horseplay. While there was some inconsistency around how the accident happened, the Court’s finding on the location and circumstances of the accident [40] was not later challenged by the CA.

Instead the focus in the Court of Appeal (in the leading judgment given by Lord Justice Waller) was on clarifying the applicable test of negligence. The first is that mere foreseeability of the risk of injury was not enough as children would appreciate that many games could lead to bruises and scrapes [7]. The court then confirmed that the primary question was whether the average child of that age would appreciate that their conduct was culpable [9]?

However probably the most important paragraph of the judgment was at [11], where the Court confirmed that “for a child to be held culpable, the conduct must be careless to a very high degree and where a child of 13 is partaking in a game within a play area, not breaking any rules, and is not acting to any significant degree beyond the norms of that game, he or she will not be held culpable.”

Given this ruling, the conclusion in [14] that “no part of the conduct seems to be outside the norm where a game of tag is being played, let alone a significant degree outside the norm”, and the fact that the school had only prohibited running inside the corridors, rather than in playgrounds, the court felt that the two boys were only acting as typical boisterous  13 year old boys might act and therefore “it would be a retrograde step to visit liability on a 13 year old for simply playing [an acceptable game] in the area where he was allowed to do so [the playground].” [19]

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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