horwich farrelly

Vicarious Liability: The Scout Association v Barnes

June, 24, 2011

The Court of Appeal dismissed the defendant’s appeal and upheld the trial judge’s decision according to which the defendant was vicariously liable for the claimant’s injuries sustained whist he was playing a game as part of his scout meeting.

The court held that the modification of the game so that it was played in the dark, did not add any social or educational value to the game, it therefore did not justify the additional foreseeable risks.

The claimant was a 13 year old boy who was injured while playing an indoor game during a scout meeting, at a hall. The defendant is, of course, a movement which provide training, education and recreation for children, making a valuable contribution to society.

The game was a modification on a game called Grab, the modification being the fact that it was played with the lights turned off. On the evening in question, the claimant accidentally collided with a bench in the hall whilst he was running as part of the game. His head and his left shoulder hit the bench which was standing against the wall.

The claimant brought a claim against the defendant alleging that the Scout Association was vicariously liable for the accident, due to the leaders’ decision to modify the original game, to be played in the dark. The defendant denied liability and pleaded contributory negligence however, at trial the judge allowed the claim and dismissed the defendant’s plea.

The defendant appealed this decision and the Court of Appeal had to decide whether the decision to play the game was negligent.

Jackson LJ recognised that the defendant had a strong case on the following grounds:

  • The game was supervised by three leaders who had assessed the risks.
  • The game had been played before and since the accident without any mishaps, and was appropriate for the participants.
  • The game was a modification of an approved game.
  • Turning the lights off was an inherent part of the excitement.
  • The competitive nature of the game had important social benefits.

He said:

“It is the function of the law of tort to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law to eliminate every iota of risk or to stamp out socially desirable activities.”

Accordingly, Jackson LJ was of the view that the appeal should be allowed.

Smith LJ came to the opposite conclusion, saying:

“….. the law of tort must not interfere with activities just because they carry some risk……But whether the social benefit of an activity is such that the degree of risk it entails is acceptable is a question of fact, degree and judgement, which must be decided on an individual basis and not by a broad brush approach”.

And Ward LJ writing for the majority, said:

“I have to confess that I have found it uncommonly difficult to reach a confident judgement in this case…..is awarding him (the claimant (AF)) damages….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……”

And in deciding that the defendant’s appeal should be dismissed, she said:

“…..Scouting would not lose much of its value if the game was not to be played in the dark…..”

Effectively, the issue in question came down to a consideration of the social value of the activity in question, and as the modification to the game did not benefit any social or educational value, it did not justify the additional foreseeable risks.

This judgement represents a potential shift in recent judicial attitudes towards recreational activities. The question whether a risk associated with a desirable activity is acceptable will now be a question of fact, degree and judgement, to be decided on case by case basis.

It indicates an approach whereby whilst blindly taking risks should be challenged, some risk is essential to the development and formation of character in today’s youth; an approach which can be seen in the new police guidelines on risk-benefit analysis contained in Lord Young’s recent report.

While the emphasis in this case is in line with the current governmental policy on providing access to risk in safe, controlled environments, this decision has far wider implications than just the scout movement if applied strictly, as many activities may struggle to demonstrate a social value and therefore may cease to be provided in the future.

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