Common sense prevails in negligence claim against tag-playing teenager
A 13-year-old child would have to be “very careless indeed” to breach a duty of care when playing tag in school grounds, the Court of Appeal has ruled.
In Orchard v Lee [2009] EWCA Civ 295, [2009] All ER (D) 39 (Apr) the court considered whether a child had breached a duty of care by running into a school lunchtime assistant supervisor, causing her serious injury.
The High Court found that running in the area was not against school rules, and that it was a “simple accident”.
On appeal, the appeal court upheld the High Court’s view that the test of culpability was that which should objectively be expected of a child of that age.
Lord Justice Waller said in his judgment: “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.”
Dismissing the appeal, he added: “I, of course, feel sympathy for the appellant. But it seems to me that the judge’s assessment of this case was clearly right. Thirteen-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.”
Plexus Law solicitor Peter Flood, who acted for the schoolboy, said: “This was an unusual case. If we had lost, there would have been incredible consequences. Children would not have able to run around playgrounds as they have done since time immemorial. It’s good to see common sense prevailing.” (See this issue, p 352).
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