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Blake v Galloway, Court of Appeal, 24 June 2004

30 June 2004
The issues

Horseplay – teenagers throwing bark chipping at each other – implied consent – Contributory Negligence

The facts

In May 1997 the Claimant was practising the jazz quintet in which he played with four friends. They were all approximately 15 years of age at the time. At lunchtime they took a break from practising and went into the grounds of the house that they were in and started to fool around throwing twigs and pieces of bark chipping at each other. The Claimant did not join in at first but after a while picked up a piece of bark chipping about 4cms in diameter and threw it at the Defendant. The Defendant picked up the same piece of bark and threw it back and hit the Claimant in the right eye. The Claimant was injured significantly. He brought proceedings against the Defendant for negligence and for a battery. The Defendant argued that the Claimant had consented to the battery and denied negligence. Damages had been agreed at £23,500. The matter came before the District Judge who found in favour of the Claimant and rejected the Defendant’s defence of volenti non fit injuria but made a finding of 50% contributory negligence.
The Defendant appealed.

The decision

1. Participants in sport and games generally owed each other a duty of care.

2. In this case the horseplay in which the youths were engaged was not a regulated sport or game played according to any rules or organised in any formal sense. It was in the nature of informal play. It was carried on under certain tacitly agreed understandings or conventions. The understandings or conventions were that the objects being thrown were restricted to twigs or bark or similarly harmless material lying around on the ground. They were being thrown in a random fashion and not aimed at particular parts of the body and they were being thrown in a good natured way without intention of causing hurt. The risk of injury on the facts was very small. There was no expectation that skill or judgement would be exercised.

3. The piece of bark which struck the blow and caused the accident was thrown in accordance with these tacit understandings. The incident was analogous to an incident occurring in a sport or game and the only real difference was that there were no formal rules. This was not however a significant distinction. The guidance given therefore by Diplock LJ in Wooldridge v Sumner although in a slightly expanded form was applicable. (In Wooldridge the Plaintiff was a spectator of a horse show who was injured when the Defendant rode his horse too fast and lost control). Therefore in a case like this there was a breach of duty of care only where the conduct amounted to recklessness or a very high degree of carelessness. If for example the Defendant had departed from the tacit understanding and had thrown a stone or aimed a piece of bark deliberately at the Claimant’s head there might have been such a breach. Here however at its highest there was an error of judgement or lapse of skill and that was not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay that the youths were engaged in.

4. As to the claim in battery the Claimant had impliedly consented to the risk of a blow to his body provided that it occurred within tacit understanding of the game.

Appeal allowed.

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