Everyone knows that children want to play games and indulge in horseplay. But when rough-and-tumble playing leads to injury and claims are brought, common sense dictates that proper regard has to be given to the nature of the activities played and the consent that participants bring with their involvement in the activity.
With the ongoing fear of an US-style compensation culture never far from the public’s mind, or at least from the popular press’s agenda, it remains as important as ever to determine where the law draws the line between compensation being recoverable, and the injured party being left to bear the unfortunate loss without redress.
Two Court of Appeal cases best bring into focus the complex law in this area, Blake v Galloway  3 All ER 315 ('Blake') and Orchard v Lee  EWCA Civ 295,  P.I.Q.R. P16 ('Orchard'). Both involve claims that a child had acted negligently, and in both a key issue was whether there had been a breach of the common law duty of care. In Blake the litigation was between the 2 participants in the horseplay, in Orchard, only the defendant was a participant; the injured claimant was a school lunchtime assistant supervising the children.
BLAKE V GALLOWAY
The facts of the case were fairly straightforward. Having been cooped up inside until lunchtime, a group of 15 year-old boys rushed out to play. Once outside, they became engaged in some high spirited and good-natured horseplay. The claimant did not join in at first, watching his friends throwing twigs and pieces of bark towards each other in a somewhat random fashion. Eventually, the claimant picked up a piece of bark and threw it towards the defendant’s lower body. The defendant threw the same piece back in the general direction of the claimant, striking the claimant in the eye, causing significant injury. The claimant sued in negligence and battery.
At first instance, the action succeeded on two bases. In the negligence claim, the district judge found that the defendant had not taken sufficient care to make sure that injury to the claimant’s head would not take place. In relation to the claim for battery, the district judge found that while the claimant did give consent to participate in a game which might have caused injury, he did not consent to the injury to the face.
The defendant appealed to the Court of Appeal, who addressed the claims in negligence and battery in turn.
It was not disputed that, generally speaking, a duty of care exists between participants in sports and games. Much more difficult is whether there has been a breach of duty on the particular facts. Since no authorities were cited before the court which dealt with negligence in relation to injury caused in the course of horseplay (this is somewhat surprising as Mullin v Richards  1 WLR 1304 considers the issue in relation to a schoolgirl being injured in a classroom ruler fight), the court turned for assistance to cases where people have been injured in more regulated sports and games, such as horseracing (Wooldridge v Sumner  2 QB 43; Caldwell v Maguire  PIQR P45), football (Condron v Basi  2 All ER 453) and waterskiing (Rootes v Shelton  ALR 33), admittedly a sport only lightly regulated.
In these cases, the court considered the principles which enable the court to establish what is required of participants by the standard of care. The key principles were:
(1) contestants in sporting contests are required to exercise in the course of the contest all care that is objectively reasonable in the prevailing circumstances to avoid injury to fellow contestants;
(2) the prevailing circumstances include the object of the contest, the demands inevitably made upon the contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant;
(3) in sports akin to professional horseracing or serious football, the nature of the normal prevailing circumstances are different from, eg, going for a walk in the countryside; they can be vigorous contests necessarily played at high speed, sometimes with powerful animals, with each participant required to make important split-second decisions;
(4) in such prevailing circumstances, there will be no liability in negligence for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required.
Parallels between organised games and horseplay
Of course, the facts before the Court of Appeal did not arise out of a sporting contest, but the court deemed this an insignificant distinction since the only real difference between organised regulated sports and games, and horseplay, is that there are no formal rules for horseplay. Moreover, the Court of Appeal cited the common features between horseplay of the kind engaged in by the boys and formal sport involving vigorous physical activity, namely, that both involved consensual participation in an activity:
(a) which involves physical contact or at least the risk of it;
(b) in which decisions are usually expected to be made quickly and often as an instinctive response to acts of other participants;
(c) whose very nature makes it difficult to avoid the risk of physical harm.
Understandings or conventions of the game
So what happens in a playing situation that is not governed by any formal or explicit rules, as with the horseplay engaged in by the boys in Blake? The answer is that the court has to look at the nature of the informal play and determine the tacitly agreed understandings or conventions by which the participants were to conduct themselves. In the boys’ game in Blake, the claimant could see these by watching the nature of the horseplay before he joined in. These understandings or conventions were that the objects being thrown were:
(i) restricted to twigs, bark and other similar relatively harmless material that happened to be lying around on the ground;
(ii) being thrown in the general direction of the participants in a somewhat random fashion and not being aimed at any particular part of each others’ bodies;
(iii) being thrown in a good-natured way, without any intention of causing harm;
(iv) being thrown without any expectation that skill or judgment would be exercised any more than there would be in a snowball fight.
The defendant’s offending throw was held to be in accordance with the tacitly agreed understandings of the game. It remained within these parameters as it was simply thrown in the direction of the claimant in the same high-spirited good nature as all the objects were, with no intention of causing harm. If the defendant had departed from the game’s understandings, then there might have been negligence. The Court of Appeal gave the example of the defendant having thrown a stone or having deliberately aimed at the claimant’s head as circumstances where negligence might have been found. Conduct resulting in liability. Naturally, the court will look at the prevailing circumstances to ascertain the standard required from participants in horseplay. As with sports contests, where a participant is injured in the course of horseplay, the offending participant will not be liable if the failure is at its highest only ‘an error of judgment or lapse of skill’ (presumably also an oversight). A breach the common law duty of care owed will occur only where the conduct complained of amounts to:
(2) a very high degree of carelessness; or
(3) a deliberate attempt to cause harm.
On the facts of Blake, although the Court of Appeal accepted that the boys’ game was not closely analogous to the fast and furious conditions of a game of football or a horserace, so the standard expected of participants was not the same, it reasoned that the circumstances were sufficiently similar in that the boys were (in addition to the factors making up the understanding or conventions):
(1) high spirited and having fun; and
(2) conducting the game at some speed and in a fairly vigorous fashion.
Considering such circumstances, at most, the defendant’s throw had been no more than an error of judgment or a lapse of skill and so he was not negligent.
As it was conceded that the defendant intended to and had applied direct force to the claimant, the only issue in the claim for battery was whether the claimant’s consent to the horseplay extended to the degree and/or type of force used.
Having approached the claim in negligence by using as a starting point cases on more formal games, when the court addressed the claim in battery, the Court of Appeal considered the question from the opposite end of the spectrum, by relying on a case involving a fistfight in the street, Lane v Holloway  1 QB 379 ('Lane'). In that case, two men engaged in a fight, after Lane insulted Holloway’s wife. Lane threw the first punch. Holloway responded by punching Lane in the face, causing injuries that required 19 stitches, an operation and one month in hospital. The court found in Lane that by participating in the fistfight, Lane had voluntarily taken upon himself the risk of incidental injury. However, Holloway was liable despite this, because Holloway had thrown a savage punch out of all proportion to the nature of the occasion.
Participants in fistfights or sports that involve the risk of some physical contact, do, by the act of taking part, impliedly consent to contact which can reasonably be expected to occur in the course of the activity, and are taken to have assumed the risk of injury from such contact. This same approach was adopted in Blake in respect of horseplay. By participating in the game, the claimant had to be taken to have consented to the risk of a blow on any part of the body (for the game was based on participants throwing the objects at no particular part of the body), provided that it was thrown more or less in accordance with the tacitly agreed understandings or conventions of the game. Since this was what the Court of Appeal had already held to have happened and that there was no negligence, the claimant had consented to this blow landing on his face. The claim for battery failed.
The court noted that it would be difficult to envisage circumstances where a participant in sports or games will be taken to impliedly consent to negligent acts. It follows that, where there is negligence, there will usually be battery.
ORCHARD V LEE
Two 13 year old boys at school were playing tag in a social area for children of their age. The claimant was there in the social area working for the school as a lunchtime assistant supervisor of the children.
One of the boys, the defendant, was running backwards and taunting the other boy, when the defendant’s head made contact with the claimant’s cheek, causing quite serious injuries. The location of the accident was on the walkway a few feet from the courtyard - it was common place for 13 year old boys to run and mess around in this area; the walkway was not subject to the ‘no running rule’ applicable elsewhere in the school.
Statement of the General Law
Lord Justice Waller gave the lead judgment, with whom Lord Justice Rimer and Aikens agreed. It had been accepted between the parties that there existed a common law duty of care between the claimant supervisor and the defendant boy. The critical issue the Court of Appeal addressed was whether a breach of this duty had occured. On this issue, the Court of Appeal drew an important distinction between the ‘foreseeability of injury’ and whether the defendant’s conduct should be held ‘culpable’. Despite the concepts being ‘very much interlinked’, Waller LJ held in Orchard that the primary question is not ‘foreseeability of injury’, as propounded in Mullin v Richards  1 WLR 1304, but is culpability, i.e. whether the defendant’s conduct has ‘fallen below the standard that should objectively be expected of a child of that age’. Culpability then is the touchstone for assessing whether the common law duty of care has been breached (and it is also a convenient shorthand phrase for the full ‘standard of care’ test).
Waller LJ then set the carelessness threshold high for children when he stated that ‘…for a child to be held culpable the conduct must be careless to a very high degree’.
Narrowing down from this overarching general culpability principle, to a particular type of factual scenario, namely, teenage children playing games, Waller LJ said that ‘where a child of 13 is partaking in a game within a play area, not breaking any rules, and is not acting to any significant degree beyond the norms of that game, he or she will not be held culpable’.
Applying the facts of Orchard to the law as found
Turning to the particular facts in Orchard, Waller LJ rejected the submission by the claimant’s counsel that the following factors demonstrated lack of care:
‘First [the defendant] was running at speed when he observed [the claimant] and her colleague. Second he appreciated the need to take action to avoid colliding with them. Third, having changed course, he turned his back and continued to run backwards while gesticulating at [the other boy]. Fourth, at no time did he look over his shoulder and at no time did he slow down. Fifth, at no time did he give [the claimant] or her colleague another thought. Sixth, he misjudged his course (as he accepted) and collided with [the claimant], the back of his head coming into contact with [the claimant’s] face.’
Waller LJ agreed with the first stance judge that the conduct of the defendant was ‘simply the conduct to be expected of a 13 year old playing tag. No part of the conduct seems to me to be outside the norm where a game of tag is being played, let alone a significant degree outside the norm’. Later, Waller LJ said ’13 year old boys will be 13 year old boys who will play tag. They will run backwards and taunt each other’.
Hinting at a wider public policy balancing exercise being undertaken, he said ‘Parents and schools are there to control children and it would be a retrograde step to visit liability on a 13 year old for simply playing a game in the area where he was allowed to do so’.
Waller LJ recognized that the accident was ‘of course most unfortunate’, but he held that there had been no breach of duty by the defendant boy.
Where both claimant and defendant are horseplay participants, the court’s approach in Blake demonstrates that the court operates under a logical and flexible framework, where all the prevailing circumstances are taken into account when setting the standard expected of participants in horseplay. Even where there is a distinct lack of formal play rules, since almost all play will have at least some tacit understandings or conventions, from tag (eg, no tripping up) to the more chaotic snowball fight (eg, no stones within the snowball); some boundaries/informal rules to the game/activity can appear ‘out of the mist’ and thereby govern what conduct does and does not overstep the mark into liability.
In practice, by setting the threshold for negligence as requiring a very high degree of carelessness, an obviously difficult test for any claimant to satisfy, the law has struck a balance very much in favour of recognizing the risks associated with, and inherent to, any type of game tacitly involving physical contact or the risk of physical contact. Similarly, an equally high threshold seems to apply to battery claims. In essence, by choosing to get involved, participants give all others a licence to make errors of judgment or lapses in skill during the rough and tumble of the game. Unfortunately for Blake, he had to accept that boys will be boys.
To put this another way, human societal interaction inherently contains many vicissitudes of life. When a risk of harm during interaction ripens into injury caused by one to another, the law does not necessarily provide redress for the injured party. The law allows the loss to remain where it has fallen (i.e. on the party injured), unless it is established that the child’s act was ‘culpable’. In the High Court of Australia case of McHale v Watson 115 CLR 199, Kitto J acknowledged this when noting that the common law duty of care is not absolute liability:
…children, like everyone else, must accept that as they go about in society the risk from which ordinary care on the part of others will not suffice to save them. One such risk is that boys of twelve may behave as boys of twelve; and that, sometimes, is a risk indeed.'
Similarly, where a child injuries a non-participant during horseplay, as in Orchard, the breach of duty by the child will not be established unless the child is ‘culpable’, that is, whether the child’s conduct has ‘fallen below the standard that should objectively be expected of a child of that age’ – what factually amounts to culpability is, like everything else in the law, context dependent - but the law provides a penumbra around the norms of the child’s ‘game’ within which unrecoverable harm can be caused by a child to those in the vicinity of the child. Those exposed to risk generated by a child’s activity should bear this in mind.
SIMON HILL © 2014
33 BEDFORD ROW
*This article by Simon Hill is based on an earlier article called ‘Boys will be Boys’, published in the Solicitors Journal in 2004 and co-authored by Simon Hill and Carla Revere.
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.