Mullin v Richards

JurisdictionEngland & Wales
JudgeLADY JUSTICE BUTLER-SLOSS,LORD JUSTICE HUTCHISON,SIR JOHN VINELOTT
Judgment Date06 November 1997
Judgment citation (vLex)[1997] EWCA Civ J1106-7
CourtCourt of Appeal (Civil Division)
Docket NumberCCRTF 96/1359/C
Date06 November 1997

[1997] EWCA Civ J1106-7

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BIRMINGHAM COUNTY COURT

(HIS HONOUR JUDGE POTTER)

Royal Courts of Justice

Strand

London WC2

Before:

Lady Justice Butler-Sloss

Lord Justice Hutchison

Sir John Vinelott

CCRTF 96/1359/C

Teresa Jane Mullin
Plaintiff/Respondent
and
Heidi Richards
First Defendant/Appellant

and

Birmingham City Council
Second Defendant

MR R LEE (Instructed by Cobbold & Gailey, Lichfield, Staffs. WS13 6LZ) appeared on behalf of the Appellant

MR M STEPHENS (Instructed by Sedhev & Co., Birmingham, B21 9SF) appeared on behalf of the Respondent

The Second Defendant did not appear and was not represented

LADY JUSTICE BUTLER-SLOSS
1

I will ask Hutchison LJ to give the first judgment.

LORD JUSTICE HUTCHISON
2

On 29 February 1988 at Perry Beeches Secondary School in Birmingham two fifteen year old schoolgirls Teresa Jane Mullin and Heidi Richards who were friends and were sitting side by side at their desk were engaged in playing around, hitting each other's white plastic 30 cm rulers as though in a play sword fight, when one or other of the rulers snapped and a fragment of plastic entered Teresa's right eye with the very unhappy result that she lost all useful sight in that eye, something that must be a source, I am sure, of great distress to her and her family.

3

Teresa brought proceedings against Heidi and the Birmingham City Council, who were the education authority, alleging negligence. It is worth noting that her pleaded case involved facts quite different from those that I summarised a moment ago. My summary reflects the learned Judge's unchallenged findings of fact as well as the case pleaded by Heidi in her defence. The Judge dismissed the claim against the authority, holding that the mathematics teacher, Miss Osborne, whose class was coming to an end when the mishap occurred, had not been guilty of negligence and the plaintiff does not appeal against that decision. The case against the local authority was based only on lack of proper supervision in the classroom on the day in question. However, the Judge having rejected Teresa's and accepted Heidi's version of how the accident occurred, concluded that each had been guilty of negligence, that Teresa's injury was the foreseeable result and that, accordingly, her claim against Heidi succeeded subject to a reduction of 50% for contributory negligence.

4

Against that decision Heidi now appeals to this court. I have referred already to the fact that it was not the plaintiff's case that the accident happened in the way the Judge found and it is worth just taking a moment to see how things stood on the pleadings.

5

The plaintiff in her Particulars of Claim had alleged facts which involved that the first defendant, her friend Heidi, had tapped her from behind on the arm on a number of occasions with her ruler. She alleged that she had at some stage stood up and had been minded to go and speak to the class teacher to have this conduct stopped but had refrained from doing that, and there came a time when Heidi hit her again and she put up her arm to shield herself and the ruler broke against her arm, that she turned to the front and then, turning back again, felt some pain or discomfort in her eye, the inference being that at that moment it was that she was injured. The important feature of her account was that she was not doing anything or participating in anything with Heidi and that her accident resulted from the unwelcome attentions of Heidi and her use of the ruler.

6

In answer to that case, the first defendant by her pleading had denied the account given by the plaintiff and she had said this in the Particulars of Contributory Negligence:

"(i) The Plaintiff was a willing participant in a game in which the Plaintiff was fencing with the First Defendant, with rulers, during the course of which one of the rulers broke.

(ii) If, which is denied, the Plaintiff suffered any injury, the First Defendant will aver that it was caused by a piece of plastic, detaching itself from the broken ruler and hitting the Plaintiff in the eye."

7

It would have been open to the plaintiff, had she wished to do so, to amend her Particulars of Claim and allege an alternative case based upon the possibility that the Judge might accept the case being advanced by the first defendant, but her advisors chose not to do that, probably for tactical reasons because they thought it would weaken her primary case about which she was resolute and maybe also because they thought that it was a case that was unlikely to be successful, one knows not. But the important thing is that there was no amendment and therefore those two versions were before the Judge. No one was advancing a case of negligence based upon Heidi's version of what occurred.

8

Most of the judgment of the learned Judge was devoted to resolving the dispute as to whether Teresa's or Heidi's account of what happened was the correct one, a task which the Judge made clear, and I have to say I understand why he said this, and I sympathise with him, was made much more difficult by the fact that the trial was in November 1995, many years after the accident which occurred.

9

Having rejected Teresa's account the Judge also held that Mrs Osborne, the class teacher, did not really see what had happened. She had said in evidence: "Heidi and Teresa were playing with rulers, playing at a sword fight." Heidi's account was that contained in her pleadings and the Judge said of that:

"I was not willing to accept the evidence of the twins [the twins being a reference to Heidi and her twin sister who gave evidence to the same effect] simple though it was, merely because they repeated it so many times with such enthusiasm. I have had to examine the notes they both wrote close to the event …. I think these … are far more valuable …

The first defendant's note is very interesting: 'Me and Teresa were playing around, hitting each other. I hit her with the ruler. It snapped out, went in her eye. It was a pure accident.' Her sister wrote a similar note: 'Heidi and Teresa were messing around, hitting each other. Heidi['s] ruler snapped and accidentally went into Teresa['s] eye. It was a complete accident.'"

10

When he came to make his findings as to what happened, the Judge, who plainly gave the matter very careful consideration, said this:

"…I conclude on the balance of probabilities that the plaintiff has not correctly stated … what occurred and that in the concluding stages of the rough play between these two girls it is probable that what was going on was more like what is described by the first defendant and her sister than what is described by the plaintiff."

11

Neither defendant argued volenti non fit injuria, though the particulars of contributory negligence, as will be recalled from my citation, referred to the plaintiff being a willing participant in the game. The Judge adverted to the absence of any such contention in terms which suggest that he thought it would not have been a possible defence, something as to which I express no opinion. I simply note that it does not arise because it was never raised. The Judge therefore had to determine whether negligence had been proved against either defendant; if so, whether the plaintiff's injury was foreseeable; and whether there was contributory negligence on the part of the plaintiff. What he said on these matters insofar as it relates to the position between Teresa and Heidi was this:

"… I do not think any doubt was raised as to this, that if on the balance of probabilities the two girls were participating on equal terms, or both as free agents participating in an event of horseplay which, as they must both have appreciated became in its concluding stage dangerous because it involved rulers being used with some violence, if those are the findings I make, and they are the findings which, as I say, on the balance of probabilities I feel driven to, then however surprising it may be to the lay mind, the result must be that both were negligent. One cannot describe it as a lawful assault so one could also say that they were mutually engaging in assault, although this does not matter to my mind, and their joint mischievous efforts produced a particular total of unintended damage which happened to fall entirely on one participant rather than both."

12

The Judge went on to refer to defence counsel's argument on foreseeability, saying this:

"The point was raised by Mr Lee in his helpful argument as to whether what happened was foreseeable or whether I should put it down to something that leads to no liability between them because it was a totally uncovenanted and unforeseeable event. Having considered that, I do not think that it is the view that I take. In fact it is not, because as the matter ended, these girls were playing with a degree of misdirected and dangerous force sufficient to produce the physical and mechanical result that it did, and at fifteen I am satisfied they must both have appreciated that to play like that was dangerous and although the precise injury would not have been foreseen, the danger of physical injury, including injury of this type, must have been readily foreseeable. So on that part of the case the plaintiff succeeds but only as to half."

13

By her notice of appeal the first defendant contends, first, that there was no or no sufficient evidence for the Judge's finding that she must have appreciated that what she was doing was dangerous; second, that there was no or no sufficient evidence for the Judge's finding that it was readily foreseeable that her conduct might cause injury of the type that the plaintiff sustained; thirdly, that...

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14 cases
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    • United Kingdom
    • Court of Appeal (Civil Division)
    • 3 April 2009
    ...I would not have struck them.” 6 As to the law the judge put the matter this way “45… Following the guidance of the Court of Appeal in Mullin v Richards [1998] 1 WLR 1304, I am satisfied that the test is whether an ordinarily prudent and reasonable 13 year old schoolboy in each defendant's ......
  • Stephen Doyle v Patrick Smith
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    • 2 November 2018
    ...and reasonable person generally: see McHale v Watson (1966) 115 CLR 199 in the High Court of Australia, followed in Mullin v Richards [1998] 1 WLR 1304. … 130 … is there some principle that requires the law to excuse from liability in negligence a defendant who fails to meet the normal stan......
  • Jack Aaronson Aka Dominic Ford v Marcus Stones Aka Mickey Taylor
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    • King's Bench Division
    • 13 October 2023
    ...prudent and reasonable person generally: see McHale v Watson (1966) 115 C.L.R. 199 in the High Court of Australia, followed in Mullin v Richards [1998] 1 W.L.R. 1304. … 130 … is there some principle that requires the law to excuse from liability in negligence a defendant who fails to meet ......
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    • Court of Appeal (Civil Division)
    • 2 July 2015
    ...prudent and reasonable person generally (see McHale v. Watson (1966) 115 C.L.R 199 in the High Court of Australia, followed in Mullins v. Richards [1998] 1 W.L.R. 1304). 125 In advancing the proposition that any degree of incapacity occasioned by mental health problems should provide no def......
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4 books & journal articles
  • A Different Ball Game—Why the Nature of Consent in Contact Sports Undermines a Unitary Approach
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    • Sage Journal of Criminal Law, The No. 71-6, December 2007
    • 1 December 2007
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    • University of British Columbia Law Review Vol. 53 No. 2, December 2020
    • 1 December 2020
    ...Kitto J's approach in McHale is rooted in the concept of normality. See Moran, supra note 14 at 76. (65) See e.g. Mullin v Richards, [1998] 1 All ER 920, [1998] 1 WLR 1304 (CA). See also Gough v Thorne, [1966] 3 All ER 398, [1966] 1 WLR 1387 (CA), Salmon LJ [cited to All ER] (adopting a sim......
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    • 27 May 2019
    ...theor y at least) be found delictu ally liable.35 This is the sit uation througho ut the UK. One English au thority, Mullen v Richards [1998] 1 WLR 1304, concerned a s chool ruler “play-fight” b etween two 15 year old pupils resu lting in a serious eye inju ry. Here, a damage s award made i......
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    • Wiley The Modern Law Review No. 80-1, January 2017
    • 1 January 2017
    ...as arising at the stage of justification or32 Miscellaneous common-law examples: McHale vWat so n (1966) 115 CLR 199; Mullin vRichards[1998] 1 WLR 1304; Surtees vKingston upon Thames Borough Council [1992] 2 FLR 559; CookvCook (1986) ALR 353; Bolam vFriern Hospital Management Committee [1957......

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