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Orchard v Lee, Court of Appeal, 3 April 2009

20 April 2009
The issues

Schools – children – boisterous behaviour – liability for injury caused by a child.

The facts

On the 27th January 2004 at 1.40pm SL was playing tag with LR. Both were 13. They were playing in a courtyard and part of a walkway, which was a social area for their age group. SL ran backwards taunting LR and in doing so ran into Mrs Orchard, a lunchtime assistant supervisor. The back of his head hit her cheek. Her injuries proved to be serious.

Mrs Orchard brought proceedings against SL, LR and the school. The proceedings were never commenced against the school and the matter went to Trial before the Judge with the boys as the only Defendants. The Judge dismissed the claim, concluding 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 his findings relating to SL alone. The Judge had found that the accident had occurred nearer the walkway, which was largely unobstructed by furniture and in respect of which there was no prohibition on running in the area at the time. Running was largely tolerated in the courtyard, even though there may have been rules with regard to running in internal corridors. He found that 13 year old boys habitually ran and messed around in the courtyard. The position changed after the accident when the rules were changed and steps were taken to bring the new rule to the attention of the pupils and the layout of the area was changed so as to discourage running. The Judge directed himself that the test he had to apply was whether an ordinarily prudent and reasonable 13 year old school boy would have realised that his actions gave rise to a risk of injury.

The decision

The Judge’s direction was not a complete statement of the law. It was too broad a formulation of the test. In Mullin v Richards, which the Trial Judge purported to follow, the Court of Appeal proved the Australian case of McHale v Watson which established the correct approach. Following that case the standard of care was objective and was the standard to be expected of a child, meaning any ordinary child of comparable age. It would not be reasonable “to expect a degree of sense and circumspection which nature ordinarily withholds until life has become less rosy” (Kitto, J in McHale v Watson).

In Blake v Galloway the Court of Appeal, which had not considered McHale or Mullins, commented in the context of horseplay between two 15 year olds that liability would be established only where the conduct amounted “to recklessness or a very high degree of carelessness”.

It was not in issue that SL owed a duty of care. But for there to be a breach 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 would 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.”

SL’s conduct was merely the conduct to be expected of a 13 year old playing tag. No part of his conduct appeared to be outside the norm, let alone a significant degree outside the norm.

Appeal dismissed.

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