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||Neutral Citation Number:  EWCA Civ 1476
||Case No: B3/2010/0264
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WARD
LADY JUSTICE SMITH
LORD JUSTICE JACKSON
(Transcript of the Handed Down Judgment of
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Mr. Patrick Field QC and Mr. David Boyle (instructed by Kennedys Law LLP) for the Appellant
Mr. Bruce Silvester (instructed by Irwin Mitchell Solicitors) for the Respondent
Hearing date: Thursday 7th October 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Jackson :
- This judgment is in five parts, namely;
Part 1. Introduction
Part 2. The Facts
Part 3. The Present Proceedings
Part 4. The Appeal
Part 5. Conclusion
Part 1. Introduction
- This is an appeal against the decision of Judge Worster in the Birmingham County Court dated 15th January 2010, holding the Scout Association liable to a young man who was injured at a scout meeting.
- The claimant is an active young man, who was and is keen on sport and similar activities. At the time of the accident he was aged 13 and a boy scout. He is now aged 23 and working as a transport coordinator. To his credit, the claimant had better things to do with his time than attend the hearing of this appeal. I commend the claimant's positive approach to his injuries and the speed with which he returned to normal activities.
- The defendant is an association with 500,000 members aged between six and eighteen. There are 7,500 scout troops and 100,000 voluntary scout leaders. The scouting movement provides training, education and recreation for cubs and scouts appropriate to their age. The Scouting Association makes a valuable contribution to society.
- After these introductory remarks I must now turn to the facts of the present case.
Part 2. The Facts
- The claimant was born on the 15th October 1987. At the age of 10 or 11 he became a scout. He joined the 237th Castle Bromwich Scout Group. The claimant remained a member of that scout group until June 2003 when he was aged 15 ½. That scout group used to meet at a scout hall in Castle Bromwich.
- Most unfortunately, on 14th February 2001, when the claimant was aged 13, he suffered an accident at a scout meeting. The accident happened in this way. The scout leader, Mr Stephen Newsome, decided that the boys would play a game called "Objects in the Dark". The procedure for this game was as follows. Ten small blocks were placed in the centre of the hall. That was one less than the number of boys that were present that evening. The eleven scouts present ran or jogged round the outside of the hall. Half of the main lights were already turned off. At a given moment the scout leader, or one of the two assistant leaders, would turn off the remainder of the main lights. This was a signal for the boys to rush to the middle of the hall and each grab a block. Whichever boy failed to grab a block would be eliminated. The next round would then be played with ten boys and nine blocks. And so on. Eventually one boy would be left and he was the winner. When the main lights were turned off, the hall was not in pitch darkness. Light was supplied by emergency lighting as well as certain other sources outside the hall.
- On the evening in question during one of the rounds the claimant accidentally collided with a bench by the east wall of the hall. The collision came about in this way. The claimant was at the north west corner of the hall when the lights went out. He ran at an angle towards the middle of the hall. He heard a block sliding away from the middle of the hall. This block, as the judge found, had been accidentally kicked by another competitor. The claimant changed direction and chased after that block. In his pursuit the claimant was heading towards the north east corner of the hall. As he approached the wall he failed to stop in time. In an attempt to slow down the claimant dropped to the floor. His head and his left shoulder hit a bench which was standing against the wall. This was a nasty accident. The scout leader, Mr Newsome, took the claimant home. He told the claimant's father that the claimant might have a bit of concussion and so to keep an eye on him.
- The claimant suffered considerable pain and discomfort following the accident. Fortunately it was half term, so he did not have to go to school that week. Two days after the accident the claimant's father took him to the Accident and Emergency Department at Birmingham Heartlands Hospital. The medical staff found tenderness near the jaw, but no neurological deficit. They found full range of movement on his left shoulder, but a bruise on the upper aspect of his arm.
- The claimant recovered from the head injury within two weeks, but the injury to the left shoulder persisted. The claimant was a keen rugby player. He resumed playing rugby two weeks after the accident, but he found that the left shoulder was painful when he tackled. The left shoulder continued to cause pain for some time and the claimant required physiotherapy. He has now made almost a full recovery from the injury.
- The claimant's accident did not deter him from scouting. He remained an active member of the Castle Bromwich Scout Group for a further two years. It is clear from all the evidence that the claimant was and is an active young man. He enjoyed the sports, the camps, the holidays and the other activities which the scout group provided.
- The claimant and his parents did not intimate any claim against the Scout Association during the period following the accident. However, on 4th March 2004 the claimants' solicitors sent a letter of claim to the Scout Association alleging negligence and claiming damages in respect of the accident on 14th March 2001. The Scout Association denied liability for any injuries which the claimant may have sustained. This was not a case susceptible to compromise. Accordingly, the claimant commenced the present proceedings.
Part 3. The Present Proceedings
- By a claim form issued in the Birmingham County Court on 19th August 2008 the claimant claimed damages against the Scout Association for personal injuries suffered in the accident on 14th February 2001. The claimant attributed that accident to negligence on the part of the Castle Bromwich scout leader and assistant leaders, for whom the defendant was vicariously responsible.
- The Scout Association denied liability and, in the alternative, alleged contributory negligence. The action was tried on the 14th and 15th January 2010 at the Birmingham County Court. The claimant and his parents gave evidence in support of the claim. Three witnesses were called on behalf of the defendant. They were the scout leader, Steven Newsome, and the two assistant leaders, Garry Griffiths and Ian Hunt. The judge gave a careful and well structured judgment on the afternoon of 15th January. He allowed the claimant's claim and dismissed the defendant's plea of contributory negligence. The judge assessed general damages at £7,000 and special damages at £322.40.
- In the course of his judgment the judge made the following findings of fact. At the time of the accident there was some light in the hall. It was not possible to see people clearly, but you could see their outlines. It was possible to see nearby objects. The claimant could see the blocks when he was a couple of strides away from them. Both of the emergency lights were on. The claimant was mistaken in his assertion that the emergency light in the area of his accident was not working. When the claimant ran towards the north east corner of the hall, chasing a block, he was looking down at the floor. He did not see the wall until it loomed up close to him. The method of stopping that the claimant adopted at that late stage was dropping to the floor. As a result both his head and his shoulder bumped into the bench.
- The judge noted that the game played on 14th February 2001 resembled a game called "Grab" described in a book of games for scouts. The difference was, however, that "Grab" is played with the lights on, whereas "Objects in the Dark" is played with the main lights off. The judge accepted Mr Newsome's evidence that turning the main lights off added excitement to the game. He also considered that it added an unacceptable degree of risk. At paragraph 27 the judge said:
"The crux of the complaint is that the game presents an obvious risk when played in the dark. The game not played in the dark is played in an enclosed space. You have a number of boys running around – one can use more emotive words than running but running is what they were doing – in a competitive game. When they rush towards the middle of the room they will probably have their heads down and be concentrating more on finding the block and winning the game than avoiding the boy next to them. Some of the bigger ones may well feel they can use their bulk to push the others out of the way. One can see those risks, not I hope with the benefit of hindsight, but just by looking at it in an objective way as a game. The removal of the vast majority of the light in the hall, in my judgment, adds significantly to the risks of the game. It also, I have little doubt, adds significantly to the excitement."
- The judge analysed the risks involved as follows at paragraphs 32 to 34 of his judgment:
"32. Secondly, I have to consider the degree of likelihood that any harm might occur. In the dark, teenage and slightly younger boys running around with their heads down, it is, I have to say, a pretty obvious risk that they might run into each other, particularly as they are all going to dash into the middle of the hall to pick up these blocks. No doubt that is part of the fun of the game, and one has to balance those two matters.
33. I also have to consider the potential severity of the harm. It is difficult to do that. No doubt the vast majority of the bumps would be little more than that. Mr Newsome described the sort of steps he would take – normally, with the little ones, a little bit of gentle care was all that was needed and then they would be up and off. No doubt with the bigger ones getting them to sit down and stop for a couple of minutes and recover would also be enough. No doubt Mark Barnes – rugby player as he was – would be inclined just to get on with it.
34. But there is also the potential for some significant injury. That risk arises if the game is played in the way in which it should be, with everybody dashing towards the middle. Because if it is dark they cannot see very well – simple as that. It also arises when something like the incident on 14th February happens and the wooden block shoots off towards the edge of the hall. You are playing this game at a pace in an enclosed area. It must be reasonably foreseeable that somebody will not be able to stop or will not see the wall as quickly as one might hope, and end up colliding with the bench or the wall or both, injuring themselves more seriously."
- The judge set out his conclusions at paragraph 36 as follows:
"The issue which I have to decide on the evidence that I have heard, on a balance of probabilities, is whether the Defendant failed to take reasonable care for the safety of the Claimant. In my judgment there is a breach of that duty here by playing this game with the lights off in circumstances where a competitive game involving 13-year old boys running around in an enclosed space – 'full pelt' as it was put - heads down, is involved. I have made that finding, as I hope is apparent, with a degree of regret because I recognise that it may impinge upon the activities of others in the future. But in all the circumstances it seems to me there is a breach here; the game played in the dark is dangerous – dangerous to the extent that there is a breach of the duty to take reasonable care. That breach of duty caused the injury in this case, an injury for which I find the Defendant is liable. "
- The defendant was aggrieved by the finding that its agents had been negligent. The defendant was also concerned about the wider implications of the decision. Accordingly it appeals to this court.
Part 4. The Appeal
- Mr Patrick Field QC for the defendant advances three arguments which I would summarise as follows:
i) Having found that the emergency light in the north east corner was on, the judge ought to have held that the claimant should have seen the wall in time and stopped. On the judge's findings of fact, the reason why the claimant did not see the wall must be because he was looking down at the block which he was chasing along the floor.
ii) In considering whether the defendant's agents exercised reasonable care, the judge weighed up a number of factors. However, in that evaluation the judge failed to take into account, or failed properly to take into account, (a) the social benefit of the activity in question and (b) the consequences of finding that the game was dangerous.
iii) The risks of collision on which the judge focused were present whether the game was played in full light or with the main lights out. Since the judge did not regard the game as dangerous if played in full light, he should not have regarded it as dangerous in the circumstances of this case.
- The first and third arguments are linked by a common theme. This theme is that the lack of illumination upon which the judge focused did not contribute to the risks or the accident which the claimant encountered. I shall therefore deal with these two arguments together.
- Any physical contest or contact sport carries with it risks. If a tort lawyer settles down to enumerate those risks he will rapidly produce a lengthy and daunting list. In the case of "Grab" one of the items on our notional list would read as follows:
"One competitor may accidentally kick item towards wall. Another competitor pursuing that item may be looking at it so intently that he does not see the wall ahead until too late and collides with the wall."
- No-one suggests that the game of Grab is too dangerous to play. The risks which I have just mentioned and many similar risks which would appear upon our notional list are regarded as acceptable risks in order for the game to take place.
- Mr Field submits that precisely the same risk exists in the game "Objects in the Dark" and that is what caused the claimant's accident. Mr Bruce Silvester for the claimant resists that submission and contends that it is unrealistic. It is, Mr Silvester submits, quite clear in the circumstances of this case and on the judge's findings of fact that the darkness increased the risk and played a material part in the occurrence of the accident.
- I cannot accept Mr Field's submission. It seems to me that the risk which is identified above is bound to be greater in the game "Objects in the Dark" than in the game "Grab". It cannot be said that the claimant would necessarily have suffered the same accident in the same way on 14th February 2001, if there had been full illumination.
- I would therefore uphold the judge's finding that the risks of the game were increased by turning off the main light. I do, however, accept that lack of illumination was a subsidiary cause rather than the main cause of this particular accident, having regard to the judge's findings as to how the accident occurred. The main cause of the accident was that the claimant was looking down at the block, rather than looking where he was going. Even so, however, it must be the case that the claimant would have become aware of the east wall earlier if the lights had been on. It is plainly correct that the lack of illumination increased the risks of the game on the night in question and that this was a material factor in the occurrence of the claimant's accident.
- I now turn to Mr Field's second argument. This is a powerful argument which has given me much concern ever since I started to read into the case.
- In support of this argument Mr Field places reliance on Tomlinson v Congleton Borough Council  UKHL 47;  1 AC 46. In that case a young man suffered injury diving into a lake which was owned and maintained by the local council. The House of Lords, reversing the Court of Appeal's decision, held that the claimant was the author of his own misfortune and dismissed the claim. In the course of his speech Lord Hoffman said this at paragraph 34:
"My Lords, the majority of the Court of Appeal appear to have proceeded on the basis that if there was a foreseeable risk of serious injury, the council was under a duty to do what was necessary to prevent it. But this in my opinion is an over-simplification. Even in the case of the duty owed to a lawful visitor under section 2(2) of the 1957 Act and even if the risk had been attributable to the state of the premises rather than the acts of Mr Tomlinson, the question of what amounts to "such care as in all the circumstances of the case is reasonable" depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measure. These factors have to be balanced against each other. "
- In the present case the game played by the scouts did involve a degree of risk. However, it was an established game which has been played by the Castle Bromwich Scouts without mishap on many occasions both before and after 14th February 2001. The scout leader, aware of the full nature of the game, considered that it was not a dangerous game and that it was appropriate for the scouts to play. Many physical recreations involve a degree of risk. Rugby, cricket or skiing are just three examples. The foreseeable risks involved are accepted, because recreations of this nature have a recognised social value: see Bolton v Stone  AC 850 and Tomlinson at paragraphs 34 to 36.
- Unfortunately, those authorities were not cited to the judge and therefore the principle stated in Lord Hoffman's speech does not feature in his judgment. The judge's comments in his judgment about the social value of scouting are, essentially, by way of background. When determining whether the defendant's agents exercised reasonable care, the judge focused upon the risks of the game and evaluated the relevant factors without reference to the social value of the activity or the consequence of his decision. Paragraph 36 of his judgment contains this telling sentence:
"I have made that finding, as I hope is apparent, with a degree of regret because I recognise that it may impinge upon the activities of others in the future."
When this sentence is read in context, it is not saying that the social value has been taken into account in determining whether the defendant exercised reasonable care. On the contrary, the judge has carried out his assessment of what constituted reasonable care by reference to the traditional factors, namely likelihood of harm, severity of harm, how the risk could be avoided and so forth. Having carried out that balancing exercise, the judge notes the social consequences of his decision and regrets them. If Lord Hoffman's speech in Tomlinson had been cited, I believe that the judge would have come to the opposite conclusion.
- In these circumstances, this court must carry out a re-evaluation of the relevant factors. The social value of the scout movement is obvious. It provides training, recreation and healthy activities for young people in their leisure time. Games are one important part of scouting activities. Mr Newsome explained candidly in his evidence why the main lights were switched off for this particular game. It made the game more exciting and, in Mr Newsome's words, "a lot of kids nowadays prefer more excitement".
- Obviously the risks of this particular game were increased by turning off the main lights. But I do not see how it could possibly be said that these increased risks outweighed the social benefits of the activity. Children and teenagers have played games with an element of risk, including games in the dark, since time immemorial. The game played by the claimant and his fellow scouts on 14th February 2001 was much safer than many games which children might play, if left to their own devices. It was properly supervised by three experienced adults. It was structured. It was a game which has been played on many occasions before and since that date without mishap. It is the sort of activity which attracts young people to join or remain in the scouts. In my view, it cannot possibly be said that there was a failure to exercise reasonable care by the scout leader and the assistant leaders.
- What happened to the claimant on 14th February 2001 was a most unfortunate accident, from which happily he has made an almost full recovery. This does not give rise to a claim for damages.
Part 5. Conclusion
- It is the function of the law of tort to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities: see generally The Philosophical Foundations of the Law of Tort (Ed D. Owen, Clarendon Press, 1995), chapter 11 "The standards of care in negligence law". This principle is now enshrined in section 1 of the Compensation Act 2006. That provision was not in force at the time of the claimant's accident. However, the principle has always been part of the common law.
- For the reasons set out in Part 4 above, in my view this appeal should be allowed and the finding of breach of duty should be set aside.
Lady Justice Smith:
- I have read the judgment of Jackson LJ and gratefully adopt his exposition of the facts. I agree with much of his reasoning and in particular with his general statement about the function of the law of tort in his concluding section. I also agree with his rejection of Mr Field's submissions in relation to causation. However, I have reached the opposite conclusion from him as to the outcome of this appeal. I give my reasons.
- Jackson LJ's reason for holding that the judge had fallen into error was that he had failed to consider or to give appropriate weight to the social benefit of the kind of activity in which the scout troop was engaged on the night of this accident. He thought 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. Had they been, the judge would have reached a different conclusion.
- The reason that I disagree is that I think that it is clear from the judgment that the judge had very clearly in mind the well-established principle that the social value of an activity is a relevant consideration. I accept of course that, when he evaluated the risks and announced his conclusion, he did not expressly include that factor. However, this was an ex tempore judgment (and in my respectful opinion a very good one) and I do not think that the judge should be criticised for his failure to mention that factor if it was clear from other passages of the judgment that he had the factor in mind. In my view, it is clear from the judgment as a whole that he had it very much in mind.
- At the beginning of his judgment, in paragraph 1, the judge said:
"The Scout Association carries out important work. Its operations are obviously for the benefit of a section of society. Scout leaders give of their time for nothing to the benefit of others, and I begin my judgment with that recognition of the importance of what they do. It is no doubt something from which all Scouts benefit and thus the rest of us too. Their work helps with the rounding of character and the education of younger people in the broader sense. It is important I remind myself of that at the outset of this judgment."
- At paragraph 12 of the judgment, the judge dealt with the cross-examination of the Scout leaders and recorded that Mr Newsom's reason for playing the game in the dark was because 'a lot of kids prefer more excitement these days than in the past'. A little later he continued:
"It is not suggested that the turning off of the lights is something that adds an additional educative or instructive element to the game; in the words of Mr Newsom, it adds to the excitement – and I am sure it does. Spice is the word that I used in the course of the trial but excitement is the word that Mr Newsom used so I will use that. "
- At paragraph 24, when the judge turned to consider whether there had been a breach of duty, he recorded the submission of Mr Boyle, counsel for the Scout Association as follows:
"Mr Boyle has quite properly emphasised the importance of this sort of activity not only in the Scouts but in life generally. He submits that activities are a good thing. Life is not without risk. Courts should not be too over-analytical about what is being done or be too over-protective of those who freely engage in this sort of activity, for the benefits greatly outweigh the potential risks in general terms."
- Immediately after that, he gave himself this general direction, as to which there is no criticism:
"25. It is a question of what is reasonable. It is not a question of applying some sort of Health and Safety culture with the benefit of hindsight. What I have to do as best as I am able to, is put myself in the position of the objective assessor in February 2001 looking at the position then, leaving out of account whatever hindsight may tell me, and ask myself the relevant questions from that perspective."
- The judge then embarked on the assessment of the various relevant matters and I accept that, to a large degree, they were based, as Jackson LJ says, on the traditional factors of degree of risk and seriousness of injury and so on. However, he reminded himself that the purpose of turning off the lights was only to add to the excitement – in other words it did not add any other value. He observed that turning off the lights added to the foreseeable risk of injury and he explained why.
- I interpose at this stage, almost in parenthesis, that in my view the judge's evaluation of the various relevant factors is exemplary. When that evaluation had been set out and before reaching his conclusion, the judge said:
"I am grateful to counsel on both sides for taking me through the arguments as they have. I have listened to the evidence given by the witnesses for the Defence. I have already indicated my view of them as people (it was highly favourable) and the importance of the role that they play."
- In the next paragraph the judge expressed his conclusion that there had been a breach of duty by playing the game in the dark. He added that he reached that conclusion with regret because he recognised that it may impinge upon the activities of others in the future.
- Mr Field's submission, which Jackson LJ has accepted, was that in his evaluation, the judge failed to take account of or failed to give sufficient weight to the social value of the activity. Mr Field accepted that what had to be brought into account was the social value of the particular activity, rather than the social value of scouting activities as a whole. Everyone accepts, including the judge, that scouting activities are valuable to society. Every one accepts, including the judge, that scouting activities will often properly include an element of risk. However, that cannot mean that any scouting activity, however risky, is acceptable just because scouting is a very good thing. The social value of the particular activity must be taken into account in assessing whether the activity was reasonably safe. It was common ground before the judge that the game played in the light was reasonably safe, although plainly there were some inherent risks. The judge held, as he was entitled to do, that playing in the dark significantly increased those risks. It was also common ground that the game had some social value; it was a good active competitive game to keep boys occupied on long winter evenings. But, on the evidence, the judge was bound to form the view that the particular justification for playing this game in the dark was only that it added excitement. The darkness did not add any other social or educative value but it did significantly increase the risk of injury. I think that the judge's attitude towards social value was clear from the passages I have quoted above. I think it is clear that he thought that the added excitement of playing the game in the dark, which might well encourage boys to attend scouts - a desirable objective -, did not justify the increased foreseeable risk.
- As I have said, this was an ex tempore judgment. If the judge had added a few words, along those lines, when announcing his conclusion, it would not be open to Mr Field to advance his criticism. In my view, the absence of those words, which can clearly be inferred from what has gone before, should not serve to undermine his conclusion.
- It is trite law that this court will not interfere with an evaluative judgment made by the judge below unless he has taken an irrelevant matter into account, omitted to take a relevant matter into account or has reached a conclusion which is plainly wrong. I do not agree that the judge has failed to take account of such social value as he thought was attached to playing this game in the dark as opposed to playing it in ordinary lighting conditions. He just did not think that the increased social value amounted to much. In my view, he was entitled to take that view and I would not interfere with his judgment.
- I repeat that I agree with all that Jackson LJ said in his concluding paragraphs. Of course, the law of tort must not interfere with activities just because they carry some risk. Of course, the law of tort must not stamp out socially desirable activities. But whether the social benefit of an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgment, which must be decided on an individual basis and not by a broad brush approach. That is what this judge did, and in my view, his conclusion should be respected.
Lord Justice Ward:
- I have to confess that I have found it uncommonly difficult to reach a confident judgment in this case. Here was a big strong thirteen year old lad, well-used to rough and tumble, playing rugby with distinction for his county, ever ready to take the bumps and the bruises, ever willingly to put his body on the line for the thrill of his sport. For him, you get hurt, you get up, and you get on with it. He brought the same enthusiasm and competitive instincts to his participation in his local Scout troop. He was the least likely boy to need wrapping in cotton wool. So, is awarding him damages for an injury suffered playing the game, "Objects in the Dark", not an example of an overprotective nanny state robbing youth of fun simply because there was some risk involved in the exercise? Is this a decision which emasculates those responsible for caring for our children and in so doing, enfeebles the children themselves? Where do you draw the line? I have found that hard to answer.
- Judge Worster, in his admirable judgment, answered the question along traditional lines. He identified "the real question" to be, "Was there a breach of duty?", and "whether there has been a failure to take reasonable care." In "gauging what is reasonable", he asked, "Why turn off the lights?" pointing out that "whilst it plainly does add excitement, it also adds what is a perfectly foreseeable risk". He then considered "the degree of likelihood that any harm might occur" and found it to be "a pretty obvious risk that they might run into each other". He also had to consider the potential severity of the harm and found that there was "potential for some significant injury." "It must be reasonably foreseeable that somebody will not be able to stop or will not see the wall as quickly as one might hope, and end up colliding with the bench or the wall or both, injuring themselves more seriously." He then directed his attention to "what precautions might be taken to minimise the risks". Since playing in the dark "lie(s) at the root of the risks in this case", the obvious precaution was not to turn the lights off. So his conclusion was:
"In my judgment there is a breach of that duty here by playing this game with the lights off in circumstances where a competitive game involving thirteen-year old boys running around in an enclosed space – "full pelt" as it was put – heads down, is involved. I have made that finding, as I hope is apparent, with a degree of regret because I recognise that it may impinge on the activities of others in the future but in all the circumstances it seems to me there is a breach here; and the game played in the dark is dangerous – dangerous to the extent that there is a breach of the duty to take reasonable care. That breach of duty caused the injury in this case, an injury for which I find the defendant is liable." (His emphasis).
So far, the reasoning seems to me to be unassailable.
- The criticism that is made of this judgment is that the judge, through no fault of his, did not expressly direct himself to Lord Hoffmann's criticism in Tomlinson v Congleton Borough Council that the Court of Appeal, of which I was a member, had failed to appreciate that:
"the question of what amounts to "such care as is in all the circumstances of the case is reasonable" depends upon assessing … not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measure. These factors have to be balanced against each other."
- In considering, therefore, whether the judge erred, I have examined his judgment to see whether his innate legal instincts led him in truth to engage in the assessment demanded by Lord Hoffmann. How, if at all, did Judge Worster balance the social value of the activity giving rise to the risk and the cost of the preventative measure?
- He clearly had the value of scouting in general well in mind. It occupies a place at the forefront of his judgment:
"1. … The Scout Association carries out important work. Its operations are obviously for the benefit of a section of society. Scout leaders give their time for nothing for the benefit of others, and I begin my judgment with the recognition of the importance of what they do. It is no doubt something from which all scouts benefit and thus the rest of us too. Their work helps with the rounding of character and the education of younger people in the broader sense. It is important that I remind myself of that at the outset of this judgment."
The operation of the Scout Association includes playing games from which scouts benefit "and the rest of us too". So these games do have a social value which we must recognise.
- With regard to this particular game, the benefit was no more than the added excitement of playing in the dark: there was no additional educative or instructive element to the game as the judge found:
"12. … It is not suggested that the turning off of the lights is something that adds an additional educative or instructive element to the game; in the words of [the scout master], it adds to the excitement – and I am sure it does. Spice is the word that I used in the course of the trial but excitement is the word that [the scoutmaster] used so I will use that."
The scoutmaster had been asked why the grabbing of the blocks was done in the dark and his answer was that: "A lot of kids prefer more excitement these days than in the past." So the particular social benefit here is the excitement which draws the boys into the scouting movement.
- In paragraph 24 we see the way the case was being put on behalf of the Scout Association.
"Mr Boyle has quite properly emphasised the importance of this sort of activity not only in the scouts but in life generally. He submits that activities are a good thing. Life is not without risk. Courts should not be too over-analytical about what is being done or be too over-protective of those who freely engage in this sort of activity for the benefits greatly outweigh the potential risks in general terms."
This seems close to the sort of analysis Lord Hoffmann demands. The judge's answer was:
"25. It is a question of what is reasonable. It is not a question of applying some sort of Health and Safety culture with the benefit of hindsight. What I have to do as best as I am able to is put myself in the position of the objective assessor in February 2001 looking at the position then, leaving out of account whatever hindsight may tell me, and ask myself the relevant questions from that perspective."
- In paragraph 27 he recognised the countervailing factors of harm against precaution that must be balanced. He said:
"The removal of the vast majority of the light in the hall, in my judgment, adds significantly to the risks of the game. It also, I have little doubt, adds significantly to the excitement."
The Association's own risk assessment saw the problem:
"We seek to provide excitement but not danger, adventure but not hazard."
- Thus the judge reached his conclusion in paragraph 36 which I have already recited above:
"There was a breach of duty by playing the game with the lights off because so playing the game was dangerous."
- Those passages satisfy me that the judge did have well in mind the social value of this game which was to add to the excitement and in that way enthuse the youngsters looking for that added "spice". But the spice also added risk and the cost of prevention was simply not to turn the lights out. When in paragraph 32 of his judgment the judge said, "No doubt that is part of the fun of the game, and one has to balance those two matters", he was recognising that part of the fun of the game was playing in the dark but that involved a risk that "harm might occur". In paragraph 35 he got to the heart of the matter, saying, "It seems to me that it [playing in the dark] does lie at the root of the risks in this case." In these passages the judge seems to me to be engaging in the Tomlinson task of balancing the social value of the activity giving rise to the risk and the cost of the preventative measures: more fun playing in the dark but more risk; less fun and less risk playing with the lights on. Is the benefit of added fun worth the added risk? He decided it was not worth it. Scouting would not lose much of its value if the game was not to be played in the dark. That is how I understand his thinking. If so, he has, in my judgment, not fallen into the trap we did in Tomlinson.
- I read Jackson LJ's judgment and was attracted by his powerful argument exonerating the Scouting Association for playing this game. I have instinctive sympathy with that view. Then I read Janet Smith LJ's judgment and see the force of her conclusion. It is, in my view, trite that a judgment of this sort is a value judgment where there is a right answer and a wrong answer: it is not a question of an exercise of discretion where there is a band of reasonable choice to be made. Nonetheless it is equally well established that the Court of Appeal must have due regard to the judgment of the trial judge who heard the whole case for he has a better 'feel' for the whole than we, in the Court of Appeal, can re-create by reading the transcripts. Here not only do I pay due respect to the judge's decision but upon analysis of it I also conclude that he has won my respect and convinced me that he has applied the law properly to the facts and that he has come to a conclusion which cannot be said to be wrong. In the result, I would dismiss the appeal.
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