Orchard v Lee

A child’s liability in negligence depends on whether the conduct fell below the objective standard reasonably expected of a child of the same age in the circumstances. When a child is playing an ordinary game in a permitted play area, breach requires conduct significantly outside the game’s norms and careless to a very high degree.

Foreseeability assists the assessment of culpability. The relevant question is whether a reasonable child would anticipate sufficiently probable, significant injury beyond that normally associated with the game. A remote possibility of some minor injury does not suffice.

A lunchtime supervisor was injured when a 13-year-old pupil, while playing tag with another pupil, briefly ran backwards and collided with her. The game occurred in the school courtyard and adjoining walkway. Running there was commonplace and was not prohibited at the time.

The supervisor sued the two pupils in negligence. His Honour Judge Iain Hughes QC in Poole County Court dismissed the claim, finding that the collision was a simple accident arising from ordinary horseplay. The appeal concerned only the liability of the pupil who collided with the supervisor.

The central issue was whether his conduct fell below the standard reasonably expected of a 13-year-old boy in those circumstances.

Appeal dismissed unanimously. Waller LJ delivered the leading judgment. Rimer and Aikens LJJ agreed.

1. The pupil owed the appellant a duty of care. The controlling question was whether his conduct was culpable because it fell below the objective standard reasonably expected of a child of his age. Foreseeability of injury assists that inquiry but does not replace it. McHale v Watson, 115 CLR 199, provided the correct approach and had been approved in Mullin v Richards [1998] 1 WLR 1304.

2. In the context of children’s play, mere awareness that some injury might occur is too broad a basis for liability. A child playing an ordinary game in a permitted play area will not be liable unless the conduct is careless to a very high degree and departs significantly from the norms of that game. The approach was consistent with the threshold applied to participant horseplay in Blake v Galloway [2004] EWCA Civ 814.

3. The pupil was playing tag where running was commonplace and permitted. Running backwards, taunting the other player and misjudging his course were ordinary incidents of that game. His conduct was not significantly outside the norm. A reasonable 13-year-old in his position would not have anticipated sufficiently probable, significant injury beyond that ordinarily associated with tag.

4. Aikens LJ added that negligence requires more than a remote possibility of injury. Applying Bolton v Stone [1951] Ac 850, the probability must be sufficient to lead a reasonable person in the defendant’s position to anticipate injury. That requirement was not satisfied.

5. The suggested analogy with contributory negligence was unhelpful. Before the Law Reform (Contributory Negligence) Act 1945, failure by an injured person to take reasonable care operated as a complete defence. Under the statutory regime, the court instead makes a just and equitable reduction by reference to the claimant’s share of responsibility. Possible responsibility for a hypothetical injury to the pupil did not determine whether he was culpable for injury caused to another.

1. Court of Appeal (Civil Division): In Orchard v Lee [2009] EWCA Civ 295, the court unanimously dismissed the appellant’s appeal.
2. Poole County Court: His Honour Judge Iain Hughes QC dismissed the negligence claim against both pupils, finding that the collision was a simple accident arising from ordinary horseplay. The appeal concerned only the pupil who collided with the appellant.