Common sense, common safety and the common good in risk-based recreation

January 20, 2011

Negligence

Solicitors Journal (Vol 155 no 2) just published an article Kris and I wrote entitled, ‘Bump in the night‘ about Scout Association v Barnes [2010] EWCA Civ 1476 which concerned a 13-year-old scout who was injured while playing an indoor game during a meeting at their scout hall. Here are a few excerpts:

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“It is the function of the law of tort to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities,” said Lord Justice Jackson in his report on the costs of civil litigation.

While Jackson LJ’s comments reinforce the approach endorsed by the House of Lords in Tomlinson v Congleton Borough Council [2003] UKHL 47 and section 1 of the Compensation Act 2006, the challenge for the judiciary has been to balance the needs of compensating injured claimants with defending inherently dangerous activities from a ‘compensation culture’.

In writing for the majority [in Barnes], Ward LJ acknowledged the difficulty in drawing the line between emasculating those responsible for caring for children and enfeebling the children themselves and wondered whether this is an instance of an overprotective nanny state robbing children of fun because they were exposed to some risk in a game.

The judgment effectively came down to a consideration of the social value of the activity. Given that the modification to the game (to play it in the dark) was only to increase the excitement associated with it and was not for any social or educative value, this could not justify the additional foreseeable risks.

This judgment has far wider implications than just the scout movement, indeed as the court themselves realised potentially all recreational activities stand to be reassessed by what is effectively a judicial value judgment of the utility of the risks being run. The inherent problem with this approach, however, is that, if strictly applied, many activities such as climbing or skiing may struggle to demonstrate a wider social utility in the conventional sense of the phrase, and the famous words of George Mallory to answer why he wanted to climb Mount Everest – “Because it’s there” – would no longer apply.

While the emphasis in Barnes on establishing a social utility as a defence against risk is clearly in line with the current governmental policy on providing access to risk in safe, controlled environments, this will have a detrimental effect on some recreational providers. Perhaps the approach should now be ‘Common sense, common safety, and the common good…’

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The full article is here.

The court case is here.

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