Orchard v Lee [2009] EWCA Civ 295
At lunchtime on 27 January 2004, two 13 year old boys were
playing tag. There was no enforced rule against running. The
claimant was working as an assistant supervisor. While playing tag
the defendant was running backwards taunting his friend, and ran
into the claimant, who sustained an injury.
Immediately before the accident, while running forward, the
defendant had spotted that supervisors were in the area, and had
changed course. However, he then ceased to give them any serious
thought and agreed later that, having turned his back, he must have
veered off his original course.
At first instance, the judge dismissed the claim against both
the boys as, although he was sympathetic to the claimant, he was
satisfied that it was a simple accident caused by, "horse play
between two 13 year old boys in and around an outside courtyard ...
doing what boys do".
The claimant appealed that finding against the defendant.
At first instance, the judge had stated that:-
"The test is whether an ordinarily prudent 13 year old
school boy … would have realised that his actions gave rise to a
risk of injury."
At appeal, it was re-affirmed that:-
"In one sense obviously running around on playgrounds may
well lead to boys bumping into each other so that one or other may
fall over and receive the odd scratch or bruise, and it would be
difficult to say that 13 year olds do not appreciate the risk of
that sort of injury. A 13 year old boy will not however be liable
simply because when playing around in the playground he perceived
that in the way the games are played there is a risk of injury of
some kind."
It was accepted that the defendant owed the claimant a duty of
care, and was accepted that an accident occurred as described and
caused injury. Therefore, the crucial question was whether the
defendant was running and playing in a way which was to any
significant degree outside the norm for 13 year olds, or in a
manner which a 13 year old boy would have foreseen was likely to
cause injury beyond that which might normally occur during a game
of tag.
Certainly, the defendant was running at speed when he saw the
claimant; he appreciated the need to take action to avoid collision
and changed course, but he then turned and ran backwards without
giving further consideration to the presence of the lunch time
supervisors. It was accepted that he misjudged his course, but the
court took the view that the conduct described was simply that to
be expected of a 13 year old playing tag, and not outside the norm
for 13 year olds. A 13 year old would not have expected this to
cause injury beyond the standard childhood bumps and scrapes of
which a risk is plainly inherent in boisterous play. It was held
that the defendant was not liable.
In the leading judgment, Lord Justice Waller stated:-
"I, of course, feel sympathy for the appellant. But it seems
to me that the judge's assessment of this case was clearly right.
Thirteen year old boys will be 13 year old boys who will play tag.
They will run backwards and they will taunt each other. If that is
what they are doing and they are not breaking any rules they should
not be held liable in negligence. Parents and schools are there to
control children, and it would be a retrograde step to visit
liability on a 13 year old for simply playing a game in the area
where he was allowed to do so."
The appeal was accordingly dismissed.
It is reasonable to take from this a general rule that, in
accidents which are caused by children, in assessing negligence the
court does not look at what the reasonable man on the Clapham
omnibus would have foreseen or done, but will consider instead the
knowledge, foresight, expectations and conduct of the reasonable
child on the Clapham school bus!
Contributed by Lesley Allan