Blake v Galloway

Participants in consensual, vigorous horseplay owe one another a duty of reasonable care. The standard is informed by the activity’s tacit conventions and inherent risks. In this setting, liability in negligence arises only from recklessness or a very high degree of carelessness; an error of judgment or lapse of skill is insufficient.

A participant also impliedly consents to the ordinary risk of being struck by a harmless object thrown in accordance with the game’s understood conventions. That consent extends to any part of the body unless the circumstances show a relevant limitation. It does not cover conduct outside those conventions, negligent conduct at the required high level, or deliberate injury.

Five teenage friends engaged in good-natured, informal horseplay by throwing twigs and bark chippings. The claimant joined the activity, threw a piece of bark towards the defendant’s lower body, and was struck in the eye when the defendant threw it back in his general direction.

District Judge Walker in Plymouth County Court held the defendant liable for negligence and battery. He rejected the defence of consent, but reduced agreed damages of £23,500 by 50% for contributory negligence. The defendant appealed.

The central issues were whether the defendant had breached the duty of care applicable to this informal activity and whether the claimant had impliedly consented to the contact for the purposes of battery.

1. Appeal allowed and claim dismissed. Lord Justice Dyson gave the leading judgment. Lord Justice Clarke and the Vice-Chancellor agreed.

2. Participants in sport, games and comparable horseplay owe each other a duty to take reasonable care. What reasonable care requires depends on all the circumstances, including the activity’s object, inherent dangers, conventions, expected skills and the speed with which participants act. The court treated the authorities on sporting contests as closely analogous to informal horseplay: the absence of formal rules was not material where objectively ascertainable tacit conventions governed the activity.

3. In consensual horseplay involving physical contact or its risk, breach requires conduct amounting to recklessness or a very high degree of carelessness. The court applied the guidance in Wooldridge v Sumner [1963] 2 QB 43 and Caldwell v Fitzgerald & others [2001] EWCA Civ 1054. Mere error of judgment or lapse of skill does not suffice.

4. The defendant threw a relatively harmless piece of bark in the general direction of the claimant, without intending harm and consistently with the play’s tacit conventions. His conduct was, at most, an error of judgment or lapse of skill. It was an unfortunate accident, not a breach of duty. The court therefore did not need to determine the defence of volenti non fit injuria in negligence.

5. For battery, consent may be implied from participation. A participant in this game consented to the risk of being struck on any part of the body by an object thrown in accordance with its conventions, without negligence and without intent to injure. The claimant had not limited his consent to blows below the face. The contact was therefore consensual and did not constitute a battery.

• Court of Appeal (Civil Division) — In [2004] EWCA Civ 814, allowed the defendant’s appeal and dismissed the claim.
• Plymouth County Court — District Judge Walker held the defendant liable in negligence and battery, rejected consent as a defence, and reduced damages by 50% for contributory negligence.