Mullin v Richards

A child’s negligence is assessed objectively by reference to the care reasonably expected from an ordinary child of the same age. The court takes account of the foresight and prudence normal at that stage of development, rather than applying an adult standard or the particular child’s subjective limitations.

Liability requires a sufficiently appreciable risk of injury. A conceivable or remote possibility is insufficient. The injury must also be of the same general kind as that which ought reasonably to have been foreseen.

An accident does not itself establish culpable conduct. Where commonplace play had produced no known previous injury or warning, the court could not infer dangerous force or a significant risk merely because an implement unexpectedly broke and caused serious harm.

Two 15-year-old schoolgirls engaged in mock fencing with plastic rulers during a lesson. A ruler broke and a fragment entered the respondent’s eye, causing loss of useful sight.

The Birmingham County Court rejected the respondent’s account and found that both girls had willingly participated in the game. It nevertheless held the appellant negligent because physical injury was foreseeable, reducing damages by 50 per cent for contributory negligence. The claim against Birmingham City Council was dismissed, and that decision was not appealed.

The appellant challenged the finding of negligence. The central issue was whether an ordinary, reasonable 15-year-old schoolgirl in her position would have appreciated that the activity presented a sufficiently significant risk of injury of the same general kind as that sustained.

1. Appeal allowed unanimously. Hutchison LJ, with whom Sir John Vinelott and Butler-Sloss LJ agreed, held that the evidence could not support a finding of negligence. The award was set aside and judgment was entered for the first defendant.

2. The standard of care applicable to a child is objective, but age is part of that objective standard. The question was what an ordinarily prudent and reasonable 15-year-old schoolgirl in the appellant’s situation would have appreciated. It was not what a reasonable adult would have foreseen. Hutchison LJ applied the approach in McHale v Watson [1966] 115 C.L.R. 199. Butler-Sloss LJ expressly endorsed Kitto J’s observations as appropriate to English law.

3. Foreseeability required more than the mere possibility of injury. Following the principle in Bolton v Stone [1951] AC 850, there had to be a sufficient probability of injury to make the conduct culpable. Further, under Hughes v The Lord Advocate [1963] AC 837, the injury sustained had to be of the same general kind as that which ought reasonably to have been foreseen.

4. Ruler fencing was shown to be a commonplace game at the school. There was no evidence that it had been prohibited or discouraged, that any warning had been given, that similar injuries had occurred, or that such rulers were prone to break. Nor was there evidence that the girls had used excessive or dangerous force.

5. The trial judge had effectively inferred dangerous force and reasonable foreseeability from the facts that the ruler broke and injury followed. That inference was unavailable on the evidence. Sir John Vinelott agreed that neither dangerous force nor a likelihood of physical injury following breakage had been proved.

6. An ordinary 15-year-old might have regarded an unlucky injury as conceivable, but would not have appreciated any likelihood or real possibility of it. The appellant’s conduct was therefore not culpable. Butler-Sloss LJ added that children must accept risks from which ordinary care by others would not protect them, including age-appropriate irresponsible play.

1. Court of Appeal: Allowed the first defendant’s appeal unanimously, set aside the findings and damages award, and entered judgment for the first defendant.

2. Birmingham County Court: Held the first defendant liable in negligence, subject to a 50 per cent reduction for the respondent’s contributory negligence. It dismissed the claim against Birmingham City Council, from which no appeal was brought.