The Scout Association v Barnes

In deciding whether reasonable care was taken in a recreational activity, the court must balance the likelihood and seriousness of injury, the social value of the particular activity, and the cost of precautions. The value of the specific feature creating an additional risk must be assessed, rather than relying on the general value of the organisation or activity. An appellate court should respect a trial judge’s evaluative conclusion unless a relevant factor was omitted, an irrelevant factor considered, or the conclusion was plainly wrong. Tort law does not require the elimination of every risk or the suppression of socially desirable activities. An accident remains actionable where a risk-enhancing feature materially contributes to it, even though the claimant’s conduct is the principal cause.

A 13-year-old scout was injured while playing a game in a scout hall with the main lights switched off. HHJ Worster, sitting in the Birmingham County Court, found the Scout Association liable in negligence and awarded £7,000 general damages and £322.40 special damages. He rejected contributory negligence.

The Scout Association appealed. It argued that the claimant should have seen the wall, that darkness had not materially increased the risk, and that the judge had failed to consider the social value of scouting and the consequences of imposing liability. The central issue was whether the trial judge had erred in applying the reasonable-care standard to a supervised recreational activity involving an accepted degree of risk.

Majority disposition. Lady Justice Smith and Lord Justice Ward dismissed the appeal. Lord Justice Jackson would have allowed it.

1. Causation. The majority rejected the challenge to causation. Although the claimant’s principal error was looking down at the block rather than where he was going, the lack of illumination increased the relevant risks and materially contributed to the accident. It was not necessary for darkness to be the main cause. (paras [25]-[26], [36])
2. Reasonable care. The applicable assessment required a balance between the likelihood and potential seriousness of injury, the social value of the activity giving rise to the risk, and the cost of preventative measures. A foreseeable risk did not automatically require the activity to be stopped or every risk to be eliminated. The court relied on the approach in Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46, and referred also to Bolton v Stone [1951] AC 850.
3. Particular activity. Smith LJ held that the relevant social value was the value of playing this particular game in the particular way, not merely the general value of scouting. The trial judge had considered the activity’s benefits and was entitled to find that darkness added excitement but no additional educational value, while significantly increasing the risk of injury. Whether the benefit justified the risk was a question of fact, degree and judgment to be determined individually.
4. Appellate review. The Court of Appeal should not interfere with an evaluative judgment unless the trial judge considered an irrelevant matter, omitted a relevant matter, or reached a plainly wrong conclusion. Ward LJ stressed the importance of respecting the trial judge’s assessment of the whole case. The trial judge’s conclusion was legally available and not plainly wrong. (paras [48]-[49], [59]-[60])
5. General principle. The law of tort is not intended to eliminate every risk or stamp out socially desirable activities. That principle was part of the common law and was later reflected in section 1 of the Compensation Act 2006, although that provision was not in force when the accident occurred. The accident therefore did not give rise to liability.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 1476: by a majority, dismissed the Scout Association’s appeal and upheld the finding of liability.
• Birmingham County Court — HHJ Worster, 15 January 2010: found the Scout Association liable in negligence, awarded damages, and dismissed the plea of contributory negligence.