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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Scout Association v Barnes [2010] EWCA Civ 1476 (21 December 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/1476.html Cite as: [2010] EWCA Civ 1476 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
HHJ WORSTER
8BM09731
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE SMITH
and
LORD JUSTICE JACKSON
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THE SCOUT ASSOCIATION |
Appellant |
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- and - |
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MARK ADAM BARNES |
Respondent |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Mr. Bruce Silvester (instructed by Irwin Mitchell Solicitors) for the Respondent
Hearing date: Thursday 7th October 2010
____________________
Crown Copyright ©
Lord Justice Jackson :
Part 1. Introduction
Part 2. The Facts
Part 3. The Present Proceedings
Part 4. The Appeal
Part 5. Conclusion
"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."
"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 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. "
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.
"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."
"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. "
"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.
Lady Justice Smith:
"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."
"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. "
"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."
"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."
"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."
Lord Justice Ward:
"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 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."
"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.
"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.
"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."
"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."
"There was a breach of duty by playing the game with the lights off because so playing the game was dangerous."
Conclusion