03.04.2009
Benjamin Browne QC & Stephen Archer win in Court of Appeal on importance of culpability in judging negligence of children
One sunny January day an exuberant 13 year old boy was playing a game of “tag” with his friend. He did not look where he was going and collided with a “dinner lady” causing her to suffer a head injury. Few would have regarded this event as a promising basis for a personal injury action but, no doubt because the boy had the benefit of cover provided as an “add on” to a house insurance policy, a claim was commenced and was heard by HH Judge Hughes at Winchester in February 2008. It was common ground before the Judge that liability needed to be determined in accordance with the guidance to be found in Mullin v Richards [1998] 1 WLR 1304. On the facts he dismissed an argument that the game had been in breach of a “no running” rule and concluded that the defendant, who had been behaving as 13 year old boys do from time to time, would not have realised that his actions gave rise to a risk of injury so the claim failed.
Surprisingly (because there was no challenge to any findings of fact, it was accepted that the law had been correctly summarised by the Judge and his conclusion seemed no more than simple commonsense) permission to appeal was given by Lady Justice Smith.
The appeal was dismissed but, whereas HH Judge Hughes had chosen to see the main issue as one of foreseeability, the Court of Appeal viewed the key issue as breach of duty: for entirely obvious reasons they were not persuaded that the defendant’s conduct could sensibly be regarded as culpable. The issue was not to be determined by asking as the claimant’s counsel had argued) whether some injury could have been foreseen (for most children would accept that bumps and bruises are a normal adjunct of such games). Nor was it to be determined by attempting to draw spurious parallels with road traffic claims where child pedestrians were held partly to blame for their injuries. Instead it was necessary to ask whether injury going beyond that normally to be expected in a game of tag was reasonably to be foreseen. Lord Justice Waller concluded:
“The truth is that McHale and Mullins demonstrate consistently with Blake 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 a significant degree beyond the norms of that game, he or she will not be held culpable”
No doubt, in reaching this eminently sensible conclusion, the Court of Appeal had in mind Schopenhaeur’s observation: “Of all the intellectual faculties, judgement is the last to mature. A child under the age of 15 should confine its attention either to subjects like mathematics, in which errors of judgment are impossible, or to subjects which are not very dangerous….”
Ben and Stephen were instructed by Plexus Law on behalf of the Respondent.
Chambers News
