Harris v Perry 2008 EWCA Civ 907
For most parents the biggest concerns in relation to organising
birthday parties in the summer were the weather and trying to
balance children's ever increasing demands in relation to venue,
entertainment and catering. Most of us would not have considered
telling junior that his suggestion of a fire eating and lion taming
themed party would have to be rejected on the grounds of health and
safety. However the decision of Mr Justice Steel in May of this
year in the case of Perry v Harris gave some basis for so
doing.
Mr and Mrs Perry hired a bouncy castle, among other things, for
the 10th birthday party of their triplets. They were found liable
for the serious head injuries suffered by an 11 year old after an
accidental collision with a 15 year old on the bouncy castle.
Mr Justice Steel held that Mrs Perry required to maintain
"uninterrupted supervision" of the bouncy castle. As it
was admitted that her back was turned when the accident occurred
the claim for damages on behalf of the injured boy succeeded. There
was also a second finding against Mrs Perry that she ought not to
have allowed children of significantly different sizes to use the
bouncy castle at the same time.
We are pleased to say that on 31 July 2008 the Court of Appeal
overturned this decision (2008 EWCA Civ 907). They found that the
test of uninterrupted supervision applied by Mr Justice Steel was
too high. The court suggested that what was required of a
responsible adult in these sorts of circumstances was that they
remain in the vicinity of the castle to intervene if those playing
on it get boisterous but not that the supervisor has to watch them
continuously to ensure that their behaviour never becomes
boisterous.
The court decided that the starting point was to place
themselves in the shoes of Mrs Perry and consider the adequacy of
what she did taking account of the knowledge that she had at the
time.
Reviewing the evidence that had been led it was noted that there
was no suggestion of any unruly behaviour before the accident. It
was also pointed out the sequence of two or three children
performing somersaults which led up to the accident happened very
quickly and without warning. The boy who caused the injury was
known to Mrs Perry and although it was accepted that he was
significantly taller and heavier than the other children on the
bouncy castle at the time he was accepted as being a responsible
and well behaved person and accurately described as a "gentle
giant".
The evidence established that Mrs Perry had seen and signed a
hire agreement for the bouncy castle which included a
recommendation that the equipment was supervised at all times by a
reasonable person and that any boisterous behaviour was stopped.
The agreement also recommended that no mix of children of different
sizes or adults would be allowed on the equipment unless it was
specifically designed to accommodate them.
In relation to the hire agreement it was established that the
bouncy castle in question was designed to accommodate both adults
and children.
It was pointed out that no evidence had been led about serious
injuries of this type happening on bouncy castles before. The court
accepted that if boisterous behaviour occurred there was a risk
that sooner or later one individual might collide with another
causing injury but they felt it was reasonably foreseeable the
nature of the injury would be similar to what might arise in other
contact sports but that it was not foreseeable that any injury
would be as significant as the one which had been sustained on this
occasion.
Having reconsidered all of the evidence the Court of Appeal had
no difficulty in finding that Mrs Perry could not be held at fault
in any way and they specifically held that the manner in which she
was supervising activities on the bouncy castle… accorded with the
demands of reasonable care for the children using them.
They concluded that the accident was a freak and tragic one
which occurred without fault.
It seems to us that this is another victory for commonsense. The
unfortunate reality is that accidents will happen and the fact that
they do does not necessarily mean that someone has to be to
blame.