Neutral Citation Number: [2009] EWCA Civ 295
Case No: B3/2008/1689
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM POOLE COUNTY COURT
His Honour Judge Iain Hughes QC
7PH00119
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/04/2009
Before :

LORD JUSTICE WALLER
LORD JUSTICE RIMER
and
LORD JUSTICE AIKENS
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Between :

	Orchard	Appellant	
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	Lee 	Respondent	
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(Transcript of the Handed Down Judgment of
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Anthony Coleman (instructed by Messrs Coles Miller) for the Appellant
Benjamin Browne QC and Stephen Archer (instructed by Messrs Plexus) for the Respondents

Hearing date : 18th March 2009
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Judgment
Lord Justice Waller : 
1.	At about 1.40 pm on 27th January 2004 the respondent (SL) a thirteen and three- quarters year old boy was playing tag with another thirteen and a half year old boy (LR), originally the second defendant to the proceedings. They were playing in the courtyard and part of a walkway which was the social area for their age group when, running backwards and taunting LR, SL ran into the appellant who was working as a lunchtime assistant supervisor at the school. The back of his head came into contact with the appellant’s cheek and although at first any injury seemed slight it has developed and her injuries are quite serious.
2.	The appellant brought proceedings naming SL, LR and the School as defendants. We were told that no proceedings were ever in fact commenced against the school and the matter proceeded to trial before His Honour Judge Iain Hughes QC with the only defendants, the two boys. The judge dismissed the claim against the boys, the essence of his conclusion being that, despite his sympathy for the appellant, he was satisfied that it was a simple accident caused by “horseplay between two 13 year old boys in and around an outside courtyard . . . boys doing what boys do”. The appeal is against his finding relating to SL alone.
3.	The findings of fact by the judge to which there is no challenge were as follows. The accident occurred in the area of a walkway which, together with a courtyard, was the social space for year 9. The walkway at the time was largely unobstructed by furniture, and there was no prohibition on running. It was an issue at the trial whether it was against school rules to be running in the walkway and the judge found that although there were rules against running in the internal corridors he was “satisfied that at the material time it was not against school rules to do so” [31].  In paragraph 32 he further found that this was SL’s understanding in that although SL recollected being told that all pupils must move around the school in an orderly manner, SL’s understanding as a 13 year old was that the walkway was different and that “the no-running rule” applicable to internal corridors did not apply there. The judge found there were good reasons for supporting that belief which he set out under subheadings (a) to (k) including (k) the fact that “Many 13 year old pupils, especially boys, regularly ran in the area…”.  Furthermore he found that his reasons applied with even more force to the courtyard where running was “largely tolerated” and in relation to which “there was no persuasive evidence . . . that prior to the accident effective steps were ever taken to prohibit or prevent pupils running in that area.”
4.	He found that 13 year old boys in their first year at the school did run and mess around in the courtyard and the walkway and that such conduct was commonplace. The position only changed after the accident when the rules were changed, and steps were taken to bring the new rule to the attention of pupils, and the layout of the area was changed so as to discourage running. 
5.	He found that the accident took place just inside the walkway adjacent to the courtyard – probably no more than one or two steps from the courtyard and that SL “was playing tag with LR in the courtyard when, by mischance, he ran backwards into the walkway at the last moment”. He found that the accident occurred as SL had described it albeit not quite where he had said. The description the judge was approving is that summarised by him at paragraph 26 where the judge said this:-
“26.  [S] was cross-examined at length by Mr Coleman for the claimant.  He was asked questions about exactly how the accident occurred:
“I was running, playing a game of tag with [LR].  I did not really think I was breaking a rule, it did not occur to me that I was.  I collided with Mrs Orchard.  I was running across the courtyard, I had seen her but thought I wouldn’t go near her, I turned round to look at [LR] and then the back of my head collided with Mrs Orchard’s head.  I was running backwards for a moment, I cannot say how many paces, and that led to the collision.”
[S] was asked for more detail about the accident:
“The supervisors were not directly in front of me.  I was slightly to the front and to the right of them.  They were in front of me and to the right of me, they were facing forwards.  Mrs Orchard was nearer to me.  I do not know how fast I was running.  I merely picked them out and adjusted my course, then they were out of my mind, I taunted [LR] then misjudged it.  When I first saw them they were quite far away.  They were moving towards me and there was a collision, I did not look back over my shoulder at them.  At the time they were completely out of my mind.  I was playing tag and taunting [LR], I had altered my course to avoid them.  Assuming they did not change course I must have veered or else I would not have struck them.”
6.	As to the law the judge put the matter this way 
“45. . . Following the guidance of the Court of Appeal in Mullin v Richards [1998] 1 WLR 1304, 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.”
7.	No real criticism is made of that direction but I am not sure it is a complete statement of the law as the judge actually, and in my view rightly, applied. First, to test negligence simply by reference to a realisation that actions may cause injury makes for too broad a test. 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 in playing around on the playground he foresees that in the way the games are played there is risk of injury of some kind.
8.	In McHale v Watson 115 CLR 199 the High Court of Australia considered a case where a 12 year old boy, having sharpened a metal instrument on the beach, later threw it at a post. It glanced off and hit a young girl in the eye. The court was divided but the majority held that the standard of conduct in negligence had to be considered by reference not to “the reasonable man” but to the reasonable child of the age of 12. As Kitto J put it, adopting the approach in the authorities relating to contributory negligence [and he was as I understand it dealing with such authorities as they were before the Law Reform (Contributory Negligence) Act 1945 or its Australian equivalent] “the standard of care is objective; it is the standard to be expected of a child, meaning any ordinary child, of comparable age . . .”. On that basis he summarised his views of liability in that case in these words at page 215:-
“On the findings which must be accepted, what the respondent did was the unpremeditated, impulsive act of a boy not yet of an age to have an adult’s realization of the danger of edged tools or an adult’s wariness in the handling of them.  It is, I think, a matter for judicial notice that the ordinary boy of twelve suffers from a feeling that a piece of wood and a sharp instrument have a special affinity.  To expect a boy of that age to consider before throwing the spike whether the timber was hard or soft, to weigh the chances of being able to make the spike stick in the post, and to foresee that it might glance off and hit the girl, would be, I think, to expect a degree of sense and circumspection which nature ordinarily withholds till life has become less rosy.
Sympathy with the injured girl is inevitable.  One might almost wish that mediaeval thinking had led to a modern rule of absolute liability for harm caused.  But it has not; and, in the absence of relevant statutory provision, children, like everyone else, must accept as they go about in society the risks from which ordinary care on the part of others will not suffice to save them.  One such risk is that boys of twelve may behave as boys of twelve; and that, sometimes, is a risk indeed.”
9.	In Mullin v Richards [1998] 1 WLR 1304 Hutchison LJ who gave the lead judgment approached the issue as to whether a 16 year old girl should be held liable by addressing primarily the question of foreseeability of injury. It is for that reason the judge in this case directed himself in the way he did. That question is very much interlinked with the question whether conduct should be held culpable, as his reasoning at page 1310 D to H would show. But I respectfully suggest that the primary question should be whether the conduct of the child is culpable, i.e. whether it has fallen below the standard that should objectively be expected of a child of that age. That will be assisted by what injury the child could foresee as likely to be caused by that conduct, but is still a separate question. It is to culpability that the High Court of Australia addressed their observations. It seems to me that McHale was approved in Mullins and that it establishes the correct approach.
10.	I should mention one further authority put before us in which the issue was whether one 15 year old participant in “horse play”, in which pieces of bark were thrown one at another, was liable for the injury to the eye of another 15 year old. In the Court of Appeal Dyson LJ, with whose judgment Clarke LJ and the Vice Chancellor agreed, held that a breach of duty of care owed by one participant to another in such horseplay would only be established where the conduct amounted “to recklessness or a very high degree of carelessness.” See Blake v Galloway [2004] EWCA Civ 814.  It does not seem that McHale or Mullins were considered by the Court of Appeal in Blake. That may be because the case in the court below had been argued by reference to the question whether the injured child was consenting (encapsulated in the maxim volenti non fit injuria) and it was only in the Court of Appeal with new counsel that it was suggested that the claim in negligence should have been dismissed.
11.	In the instant case, although we are not concerned with participants and the duty of care owed by participants one to the other, but are concerned with two 13 year old boys playing tag and the duty of care owed to persons supervising them, I am doubtful whether when considering the culpability of their conduct there will be any significant difference.  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 any significant degree beyond the norms of that game, he or she will not be held culpable.
12.	I would summarise the position in this way.  It is not in issue that SL owed a duty of care. But if there is to be found a breach of that duty of care it would have to be established that SL, 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. The answer to that question can be assisted by considering whether SL 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.
13.	Mr Anthony Coleman for the appellant submitted that what gave rise to liability in this case were the following particular factors which he submits demonstrated lack of care. First SL was running at speed when he observed the appellant and her colleague. Second he appreciated the need to take action to avoid colliding with them. Third, having changed course, he turned his back and continued to run backwards while gesticulating at LR. Fourth, at no time did he look over his shoulder and at no time did he slow down. Fifth, at no time did he give the appellant or her colleague another thought. Sixth, he misjudged his course (as he accepted) and collided with the appellant, the back of his head coming into contact with the appellant’s face.
14.	The accident was of course most unfortunate but the conduct of SL described seems to me to be simply the conduct to be expected of a 13 year old playing tag. No part of the conduct seems to me to be outside the norm where a game of tag is being played, let alone a significant degree outside the norm. 
15.	As the judge pointed out, there might be a difference between playing tag in the courtyard or walkway and playing tag close to traffic in the street. But as the judge also found no ordinarily prudent and reasonable 13 year old boy playing tag in the courtyard and walkway would reasonably have foreseen the risk of injury by virtue of what SL was doing. By risk of injury I would understand the judge to be referring to a risk of injury beyond that normally associated with a game of tag in a play area. 
16.	Mr Coleman argued again before us as he had before the judge that the matter should be tested by reference to the question whether SL would have been held to have been guilty of contributory negligence if he had himself been injured during his run backwards. He relied on the reasoning of Kitto J in McHale who, he pointed out, drew on the cases relating contributory negligence in reaching the view he did as to the standard to be applied in the case of a child. Thus he argued if one assumed that SL had tripped over a defect in the walkway during his run backwards and had suffered injury would he not have been found guilty of contributory negligence? The answer the judge gave is that he would not have been found guilty of any contributory negligence for the very same reasons as he was not liable in negligence.
17.	I do not disagree with the judge’s assessment but, although the matter was not fully explored before us, it seems to me (as I have already indicated) that when Kitto J was considering the matter he was doing so on the assumption that contributory negligence was a complete defence as it was before the Law Reform (Contributory Negligence) Act 1945. At that time what a defendant had to establish was that the “injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.”. It is for that reason Kitto J relies on the “failure to take reasonable care” as providing a basis for an analogy on page 214. 
18.	But after the 1945 Act what a court is concerned to do is to consider whether there should be a reduction in damages “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.” That being the question I do not actually find it helpful to consider whether SL might have been held partly responsible for his own injury in tripping over some defective part of the walkway, in assessing whether he should be held culpable for the injury to the appellant.
19.	I, of course, feel sympathy for the appellant. But it seems to me that the judge’s assessment of this case was clearly right. 13 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.
20.	I would dismiss the appeal.
Lord Justice Rimer
21.	I agree.
Lord Justice Aikens
22.	I also agree.   As Waller LJ has stated, S owed the appellant a duty of care.   The injuries were directly caused by the incident and there is no question of them being too remote to be recoverable if an action in negligence were otherwise successful.  Therefore the only question for the judge and this court must be whether the conduct of S, as a 13 year old boy, fell below the standard to be expected of a reasonable 13 year old boy in the circumstances in which S found himself that afternoon,  so as to constitute negligent behaviour.
23.	The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “reasonable behaviour”.  Before holding that a person has acted negligently so as to be liable in an action for negligence, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions.    Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it.    See in particular the speech of Lord Porter in Bolton v Stone [1951] Ac 850 at 858.
24.	In the present case, the question is whether a reasonable 13 year old boy, in the situation that S was in, would have anticipated that some significant personal injury would result from his actions in playing tag as he did.  For the reasons given by Waller LJ, I agree that he would not have done so.  A reasonable 13 year old boy in that position would not have regarded such an injury as being sufficiently probable to lead him to anticipate it.    Therefore S did not fall below the standard of care required of him. 
25.	Accordingly, the appeal must be dismissed.