Court of Appeal

Published April 14, 2009

Orchard v Lee

Before Lord Justice Waller, Lord Justice Rimer and Lord Justice Aikens

Judgment April 3, 2009

A child at school playing a game in an authorised play area who was not breaking any rules and who was not acting beyond the norms of the game was not liable for an injury caused to a playground supervisor.

The Court of Appeal so stated when dismissing the appeal of Mrs Michelle Orchard against the dismissal by Judge Iain Hughes, QC, in Poole County Court on May 30, 2008, of her claim against Sebastian Lee, aged 13, for damages in negligence after she was injured when Sebastian, playing tag with another boy aged 13, ran into her in the playground where she was a lunchtime assistant supervisor, at Corfe Hills School, Corfe Mullen, Dorset.

Mr Anthony Coleman for Mrs Orchard; Mr Benjamin Browne, QC and Mr Stephen Archer for Sebastian.

LORD JUSTICE WALLER said that the judge had followed the guidance inMullin v Ri-chards ([1998] 1 WLR 1304) and found that there had been a simple accident caused by horseplay. The judge said that the test was whether an ordinarily prudent and reasonable 13 year old would have realised that his actions gave rise to a risk of injury.

His Lordship said that that was not a complete statement of the law which the judge had rightly applied. The primary question should be whether the conduct of the child was culpable, namely, whether it had fallen below the standard that should objectively be expected of child of that age.

That question would be assisted by what injury the child could foresee as likely to be caused by that conduct, but was still a separate question. McHale v Watson ((1966) 115 CLR 199) of the High Court of Australia was approved inMullinand established the correct approach.

For a child to be held culpable, the conduct must be careless to a very high degree, and where a child aged 13 was participating in a game within a play area, was not breaking any rules and was not acting to any significant degree beyond the norms of that game, he would not be held culpable.

Lord Justice Rimer and Lord Justice Aikens agreed. Solicitors: Coles Miller, Poole; Plexus Law

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