ORCHARD V LEE (COURT OF APPEAL 3 APRIL 2009)
The claimant was employed as a lunchtime Supervisor at a school. On the day of the accident and during lunchtime, Sebastian Lee and Luke Randall, both year 9 pupils and 13 years of age, were engaged in playing tag in a courtyard and walkway that was dedicated to year 9 pupils. Whilst running, Sebastian looked backwards to taunt Luke and unfortunately ran into the claimant. The back of his head struck the claimants cheek and, whilst the injury was initially considered to be minor, it developed into a more serious injury.
The claimant brought Proceedings alleging negligence against both boys and the school, although the Proceedings against the school were never pursued. At first instance, the Trial Judge found that prior to the accident, running had not been forbidden in the walkway area and was commonplace at that time; after the accident, running was forbidden in this area. The accident occurred just inside the walkway, near the courtyard where running was allowed. It was held that the legal test was whether or not an ordinary, prudent and reasonable 13 year old in each of the defendants situations would have realised that his actions gave rise to a risk of injury. To this question, the Judge replied that he was satisfied that Sebastian did not realise his game of tag gave rise to a risk of injury at the time and nor would it have been reasonably foreseeable to any ordinary, prudent and reasonable 13 year old. The Proceedings against both boys were dismissed.
The claimant appealed in relation to Sebastian Lee. The Court of Appeal agreed with the decision of the Trial Judge and dismissed the Appeal. The Court held that if Sebastian was acting in the same way as any other 13 year old and not breaking any rules, then he should not be liable in negligence. It would be a retrograde step to attribute liability on a 13 year old for simply playing a game in the area where he was allowed to do so.
This case confirms that, where negligence is alleged, the test is objective i.e. would a reasonable person in the position of the defendant contemplate that injury is likely to follow their actions or omissions? It is clear that it will be difficult for claimants to prove negligence where the injury results from play that is typical of children of that age.