O v L, [2009] EWCA Civ 295, [2009] All ER (D) 39 (Apr)
Court of Appeal, Civil Division, 3 Apr 2009, Waller, Rimer and Aikens LJJ
The primary question in determining whether a child has breached his duty of care concerns whether the conduct of the child was culpable, namely whether it had fallen below the standard that should objectively be expected of a child of that age. The conduct of a child would have to be very careless indeed.
Anthony Coleman (instructed by Coles Miller) for the claimant. Benjamin Browne QC & Stephen Archer (instructed by Plexus) for the first defendant.
In January 2004, the defendants, both aged 13, were playing tag in school. They were playing in a courtyard and part of a walkway which was the social area for their age group when, running backwards, the first defendant collided with the claimant. The claimant suffered serious injuries as a result. She brought proceedings.
The judge found that running in the area was not against school rules and many children, especially boys in the defendants’ age group, did so. He went on to dismiss the claim, holding that it was a simple accident caused by “horseplay between two 13-year-old boys...boys doing what boys do”. The claimant appealed in respect of the first defendant only.
Waller LJ:
As to the law the judge had stated: “Following the guidance of the Court of Appeal in Mullin v Richards [1998] 1 WLR 1305 [[1998] 1 All ER 920], I am satisfied that the test is whether an ordinarily prudent and reasonable 13- year-old schoolboy in each defendant’s situation would have realised that his actions gave rise to a risk of injury.”
No real criticism had made of that direction but it was not a complete statement of the law. First, to test negligence simply by reference to a realisation that actions might cause injury made for too broad a test. In one sense obviously running around on playgrounds might well lead to boys bumping into each other so that one or other might fall over and receive the odd scratch or bruise, and it would be difficult to say that 13-year-olds did not appreciate the risk of that sort of injury. A 13-yearold boy would not, however, be liable simply because in playing around on the playground he foresaw that in the way the games were played there was a risk of injury of some kind.
Culpability
In the Mullin case Hutchison LJ approached the issue as to whether a 16-year-old girl should be held liable by addressing primarily the question of foreseeability of injury. That question was interlinked with the question whether conduct should be held culpable. But the primary question should be whether the conduct of the child was culpable, ie whether it had fallen below the standard that should objectively be expected of a child of that age. That would be assisted by what injury the child could foresee as likely to be caused by that conduct, but was still a separate question. It was to culpability that the High Court of Australia addressed observations in McHale v Watson 115 CLR 199, which was approved in Mullin and established the correct approach.
For a child to be held culpable the conduct had to be careless to a very high degree and where a child of 13 was partaking in a game within a play area, not breaking any rules, and was not acting to any significant degree beyond the norms of that game, he would not be held culpable.
It was not in issue that the first defendant owed a duty of care. But if there was to be found a breach of that duty of care it would have to be established that the first defendant, a 13- year-old, was running about and playing tag in a way which was to a significant degree outside the norm for 13-year-olds.
Conduct
The answer to that question could be assisted by considering whether the first defendant was conducting himself in the way he played tag in a manner in which a 13-year-old boy would reasonably foresee there was likely to be injury beyond that normally occurring while a game of tag was in progress.
His lordship considered the facts further and held that the conduct of the first defendant was simply the conduct to be expected of a 13-year-old playing tag. No part was outside the norm where a game of tag was being played, let alone a significant degree outside the norm.
Control
The judge’s assessment of the case was clearly right. Thirteen-year-old boys would be 13-year-old boys who would play tag. They would run backwards and they would taunt each other. If that was what they were doing and they were not breaking any rules they should not be held liable in negligence. Parents and schools were 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 would therefore be dismissed.
Rimer and Aikens LJJ agreed.
