Orchard v Lee

JurisdictionEngland & Wales
JudgeLord Justice Waller,Lord Justice Rimer,Lord Justice Aikens
Judgment Date03 April 2009
Neutral Citation[2009] EWCA Civ 295
Docket NumberCase No: B3/2008/1689
CourtCourt of Appeal (Civil Division)
Date03 April 2009

[2009] EWCA Civ 295




His Honour Judge Iain Hughes QC

Before : Lord Justice Waller

Lord Justice Rimer


Lord Justice Aikens

Case No: B3/2008/1689



Anthony Coleman (instructed by Messrs Coles Miller) for the Appellant

Benjamin Browne QC and Stephen Archer (instructed by Messrs Plexus) for the Respondents

Hearing date : 18 th March 2009

Lord Justice Waller

Lord Justice Waller :


At about 1.40 pm on 27 th January 2004 the respondent (SL) a thirteen and three—quarters year old boy was playing tag with another thirteen and a half year old boy (LR), originally the second defendant to the proceedings. They were playing in the courtyard and part of a walkway which was the social area for their age group when, running backwards and taunting LR, SL ran into the appellant who was working as a lunchtime assistant supervisor at the school. The back of his head came into contact with the appellant's cheek and although at first any injury seemed slight it has developed and her injuries are quite serious.


The appellant brought proceedings naming SL, LR and the School as defendants. We were told that no proceedings were ever in fact commenced against the school and the matter proceeded to trial before His Honour Judge Iain Hughes QC with the only defendants, the two boys. The judge dismissed the claim against the boys, the essence of his conclusion being that, despite his sympathy for the appellant, he was satisfied that it was a simple accident caused by “horseplay between two 13 year old boys in and around an outside courtyard … boys doing what boys do”. The appeal is against his finding relating to SL alone.


The findings of fact by the judge to which there is no challenge were as follows. The accident occurred in the area of a walkway which, together with a courtyard, was the social space for year 9. The walkway at the time was largely unobstructed by furniture, and there was no prohibition on running. It was an issue at the trial whether it was against school rules to be running in the walkway and the judge found that although there were rules against running in the internal corridors he was “satisfied that at the material time it was not against school rules to do so” [31]. In paragraph 32 he further found that this was SL's understanding in that although SL recollected being told that all pupils must move around the school in an orderly manner, SL's understanding as a 13 year old was that the walkway was different and that “the no-running rule” applicable to internal corridors did not apply there. The judge found there were good reasons for supporting that belief which he set out under subheadings (a) to (k) including (k) the fact that “Many 13 year old pupils, especially boys, regularly ran in the area…”. Furthermore he found that his reasons applied with even more force to the courtyard where running was “largely tolerated” and in relation to which “there was no persuasive evidence … that prior to the accident effective steps were ever taken to prohibit or prevent pupils running in that area.”


He found that 13 year old boys in their first year at the school did run and mess around in the courtyard and the walkway and that such conduct was commonplace. The position only changed after the accident when the rules were changed, and steps were taken to bring the new rule to the attention of pupils, and the layout of the area was changed so as to discourage running.


He found that the accident took place just inside the walkway adjacent to the courtyard – probably no more than one or two steps from the courtyard and that SL “was playing tag with LR in the courtyard when, by mischance, he ran backwards into the walkway at the last moment”. He found that the accident occurred as SL had described it albeit not quite where he had said. The description the judge was approving is that summarised by him at paragraph 26 where the judge said this:-

“26. [S] was cross-examined at length by Mr Coleman for the claimant. He was asked questions about exactly how the accident occurred:

“I was running, playing a game of tag with [LR]. I did not really think I was breaking a rule, it did not occur to me that I was. I collided with Mrs Orchard. I was running across the courtyard, I had seen her but thought I wouldn't go near her, I turned round to look at [LR] and then the back of my head collided with Mrs Orchard's head. I was running backwards for a moment, I cannot say how many paces, and that led to the collision.”

[S] was asked for more detail about the accident:

“The supervisors were not directly in front of me. I was slightly to the front and to the right of them. They were in front of me and to the right of me, they were facing forwards. Mrs Orchard was nearer to me. I do not know how fast I was running. I merely picked them out and adjusted my course, then they were out of my mind, I taunted [LR] then misjudged it. When I first saw them they were quite far away. They were moving towards me and there was a collision, I did not look back over my shoulder at them. At the time they were completely out of my mind. I was playing tag and taunting [LR], I had altered my course to avoid them. Assuming they did not change course I must have veered or else I would not have struck them.”


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 situation would have realised that his actions gave rise to a risk of injury.”


No real criticism is made of that direction but I am not sure it is a complete statement of the law as the judge actually, and in my view rightly, applied. First, to test negligence simply by reference to a realisation that actions may cause injury makes for too broad a test. In one sense obviously running around on playgrounds may well lead to boys bumping into each other so that one or other may fall over and receive the odd scratch or bruise, and it would be difficult to say that 13 year olds do not appreciate the risk of that sort of injury. 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.


In McHale v Watson 115 CLR 199 the High Court of Australia considered a case where a 12 year old boy, having sharpened a metal instrument on the beach, later threw it at a post. It glanced off and hit a young girl in the eye. The court was divided but the majority held that the standard of conduct in negligence had to be considered by reference not to “the reasonable man” but to the reasonable child of the age of 12. As Kitto J put it, adopting the approach in the authorities relating to contributory negligence [and he was as I understand it dealing with such authorities as they were before the Law Reform (Contributory Negligence) Act 1945 or its Australian equivalent] “the standard of care is objective; it is the standard to be expected of a child, meaning any ordinary child, of comparable age …”. On that basis he summarised his views of...

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