Barnes v Scout Association
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lady Justice Smith,Lord Justice Ward |
| Judgment Date | 21 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1476 |
| Docket Number | Case No: 2010/0264/B3 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2010 |
[2010] EWCA Civ 1476
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
Hhj Worster
Before: Lord Justice Ward
Lady Justice Smith
and
Lord Justice Jackson
Case No: 2010/0264/B3
8BM09731
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 7 th October 2010
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
This is an appeal against the decision of Judge Worster in the Birmingham County Court dated 15 th 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.
The claimant was born on the 15 th October 1987. At the age of 10 or 11 he became a scout. He joined the 237 th Castle Bromwich Scout Group. The claimant remained a member of that scout group until June 2003 when he was aged 15 1/2. That scout group used to meet at a scout hall in Castle Bromwich.
Most unfortunately, on 14 th 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 4 th 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 14 th 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.
By a claim form issued in the Birmingham County Court on 19 th August 2008 the claimant claimed damages against the Scout Association for personal injuries suffered in the accident on 14 th 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 14 th and 15 th 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 15 th 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 14 th 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...
To continue reading
Request your trial
-
Cornish Glennroy Blair-Ford v Crs Adventures Ltd
...as to the legal principles to be applied to the case. 45 First, it is agreed that, by virtue of the common law as rehearsed in Barnes v Scout Association [2010] EWCA Civ 1476, and S.1 of the Compensation Act, the law of tort must not stamp out socially desirable activities just because an a......
-
Jennifer Wilkin-Shaw (Administratrix of the Estate of Charlotte Shaw (Deceased)) v (1) Christopher Fuller (2) Kingsley School Bideford Enterprises Ltd (Formerly Known as Edgehill College Enterprises Ltd)
...v Stone, it is still in all the circumstances reasonable to do nothing about it." 45 In The Scout Association v Mark Adam Barnes [2010] EWCA Civ 1476 Janet Smith LJ addressed the point at paragraph 49: "Of course, the law of tort must not interfere with activities just because they carry so......
-
Contributory Negligence in the Twenty‐First Century: An Empirical Study of First Instance Decisions
...Rep IR 149;(253) Sklair vHaycock [2009] EWHC 3328 (QB); (254) Howe vHoulton [2009]EWHC 3344 (QB).2010(255) Scout Association vBarnes [2010] EWCA Civ 1476; (256) Limbrick vRonGreen & Son [2010] CLY 2413; (257) Moore vHotelplan Ltd (t/a Inghams Travel)[2010] EWHC 276 (QB); (258) Waters vHayle......
-
Table of cases
...Boutros, 2009 ABQB 651 ........................................................................... 168 The Scout Association v Barnes, [2010] EWCA Civ 1476 .................................... 35 THE LAW OF TORTS 522 Thiessen v Mutual Life Assurance Co, [2001] BCJ No 1849, 8 CCLT (3d) 134 (......
-
Table of cases
...471 ............................................................................................ 209 The Scout Association v. Barnes, [2010] EWCA Civ 1476 ................................... 35 Thiessen v. Mutual Life Assurance Co., [2001] B.C.J. No. 1849, 8 C.C.L.T. (3d) 134 (S.C.), var’d ......
-
Table of Cases
...471 ............................................................................................ 202 The Scout Association v. Barnes, [2010] EWCA Civ 1476 ................................... 35 Thiessen v. Mutual Life Assurance Co., [2001] B.C.J. No. 1849, 8 C.C.L.T. (3d) 134 (S.C.), var’d ......