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Barnes v The Scout Association, Court of Appeal, 21 December 2010

7 January 2011
The issues

Compensation Act – dangerous activities – social utility

The facts

The Claimant was a Boy Scout. He was a member of the 237th Castle Bromwich Scout Group.

On the 14th February 2001, when he was aged 13, he had an accident at a Scout meeting. The Scout Leader organised a game called “objects in the dark”. Ten blocks were set out in the hall That was one less than the number of boys in the hall. The 11 boys jogged around the outside of the hall. Half of the main lights were already turned off. At a given moment the remainder of the lights would be turned off, which was a signal for the boys to rush to the middle of the hall and grab a block. Whoever failed to grab a block would be eliminated. The next round would be played with 10 boys and 9 blocks. And so on.

On the evening in question, during one of the rounds, the Claimant accidentally collided with a bench by the East wall of the hall. His left shoulder and head hit the bench. He had pain and discomfort. When he was taken to Accident & Emergency two days later, medical staff found tenderness near the jaw but no neurological deficit. He had full movement of his left shoulder but a bruise on his arm. He recovered from the head injury within two weeks but the injury to the shoulder persisted. He resumed playing rugby two weeks after the accident but found the left shoulder painful when he tackled. Eventually he required physiotherapy but made a full recovery. He remained a member of the Scout group for a further two years after the accident. He was an active young man.

A claim was brought against the Scout Association claiming damages for personal injuries and alleging negligence. The matter came before the Judge, who found for the Claimant.

The Defendant Appealed.

The decision

It had been said that the Judge had fallen into error in that he had failed to consider or give appropriate weight to the social benefit of the kind of activity in which the Scout troop was engaged on the night of the accident. It was said that the Judge had fallen into this error because the cases of Bolton v Stone and Tomlinson v Congleton Borough Council had not been cited to him and in particular the dictum of Lord Hoffman in that case.

The Court disagreed. It was clear from his Judgment that the Judge had very clearly in mind the well established principle that the social value of an activity was a relevant consideration. He found that the purpose of turning off the lights was to add to the excitement – in other words, it did not add any other value to the activity. Turning off the lights the Judge had found added to the foreseeable risk of injury. This amounted to a breach of duty that had caused the Claimant’s accident.

The social value of a particular activity had to be taken into account in assessing whether the activity was reasonably safe. It was accepted that scouting activities would often properly include an element of risk. It was common ground that the game played in the light was reasonably safe. The Judge had been entitled to find that playing the game in the dark increased the risks. It was common ground that the game had social value. However, the Judge was bound to form the view that the particular justification for playing the game in the dark was only that it added excitement and no other social or educative value, but that playing it in the dark significantly increased the risk of injury. Although the Judge did not expressly refer to his consideration of social value, it was clear that on his Judgment as a whole that he had considered that factor.

Appeal dismissed.

Comments

The first and leading Judgment of Lord Justice Jackson is a dissenting Judgment. Even so, it is worth reading for his views with regard to the importance (in accordance with Tomlinson) of the Court carrying out a proper evaluation of the relevant factors in deciding whether the Defendant exercised reasonable care. Those factors, according to Lord Hoffman in Tomlinson, were not only the likelihood that someone might be injured and the seriousness of the injury, but also the social value of the activity which gave rise to the risk and the cost of preventative measures. Lord Justice Jackson in his dissenting Judgment took the view that it could not possibly be said that the increased risks of playing the game in the dark outweighed the social benefit of the activity. “Children and teenagers have played games with an element of risk, including games in the dark, since time immemorial”. He also noted that it was not the function of the law of tort to “eliminate every iota of risk or to stamp out socially desirable activities”. Although the principles were now enshrined in Section 1 of the Compensation Act 2006, the principle had always been part of the common law.

Lord Justice Ward’s Judgment is also worth reading, not least for its individualistic and elegant tone. However, although he noted that he found it “uncommonly difficult” to reach a confident Judgment, on balance he found himself persuaded by Lady Justice Smith – who it should be noted in her Judgment agreed with much of the Judgment of Lord Justice Jackson and in particular with his general statement about the function of the law of tort.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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