Dear all,
The English Court of Appeal in
The Scout Association v Mark Adam Barnes [2010] EWCA Civ 1476 has, by a majority, dismissed the appeal by the Scout Association against a finding that it had breached its duty to the respondent by allowing what appears to be a common Scout game called "Objects in the Dark" to be played, during which the respondent was injured.
The main point in the appeal was whether the trial judge had borne in mind Lord Hoffmann's guidance in Tomlinson v Congleton BC that, in assessing whether there had been a breach of the duty to take reasonable care, the social value of the activity in question and the cost of preventive measures must be considered. Jackson LJ in the minority felt the trial judge had not done so, while the majority (Smith and Ward LJJ) disagreed.
Although it seems quite clear from the quoted extracts of the trial judge's judgment that he had taken the relevant factors into consideration, and that therefore the majority are right, ultimately the real question is whether the trial judge correctly weighed the costs and benefits of the competing factors, and there is substantial force in Ward LJ's lament at [50] that:
I have to confess that I have found it uncommonly difficult to reach a confident judgment in this case. Here was a big strong thirteen year old lad, well-used to rough and tumble, playing rugby with distinction for his county, ever ready to take the bumps and the bruises, ever willingly to put his body on the line for the thrill of his sport. For him, you get hurt, you get up, and you get on with it. He brought the same enthusiasm and competitive instincts to his participation in his local Scout troop. He was the least likely boy to need wrapping in cotton wool. So, is awarding him damages for an injury suffered playing the game, "Objects in the Dark", not an example of an overprotective nanny state robbing youth of fun simply because there was some risk involved in the exercise? Is this a decision which emasculates those responsible for caring for our children and in so doing, enfeebles the children themselves? Where do you draw the line? I have found that hard to answer.
Otherwise, Merry Christmas all!
Colin