Duty of care for game at scout meeting

In 2001 the Claimant sustained injuries when he collided with a bench whilst playing a game called “Objects in the Dark” at a scout meeting. He was then aged 13. Ten small blocks were placed in the centre of the hall. The 11 scouts present ran around the outside of the hall. When the lights were turned out the boys rushed to the middle of the hall and grabbed a block. Whichever boy failed to grab a block was eliminated. The next round was played with ten boys and nine blocks and so on. The game was similar to another game called “Grab” which was played with the lights on. When the main lights were turned off, the hall was not in pitch darkness, as some light was supplied from other sources. At first instance the Judge held that the Defendant was in breach of duty, on the basis that turning off the lights added a foreseeable risk. The Defendant appealed.

Held

By a 2:1 majority judgment, the appeal failed. Lady Justice Smith held that, whilst he did not expressly refer to it in his judgment, the Judge had in mind the well-established principle that the social value of an activity is a relevant consideration. On this basis, the Court of Appeal would not interfere with the first instance judgment.

In his dissenting judgment, Lord Justice Jackson disagreed with his fellow Judges, taking the view that it could not possibly be said that there was a failure to exercise reasonable care. He stated “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 of tort to eliminate every iota of risk or to stamp out socially desirable activities... This principle is now enshrined in section 1 of the Compensation Act 2006”.

Comment

Lady Justice Smith and Lord Justice Ward, whilst finding in favour of the Claimant, clearly had considerable sympathy for the Defendant in this case. Lord Justice Ward commented that he found it uncommonly difficult to reach a confident judgment in the case.

This case illustrates the difficulties faced by organisations such as the Scout Association in balancing the need to expose children to healthy physical risk-taking against the risk of litigation should any injuries occur. Whilst the outcome of this case is disappointing, some comfort can be taken from the approach adopted by Lord Justice Jackson, including his comment that what happened to the Claimant was a most unfortunate accident, which does not give rise to a claim for damages.

Kennedys acted for the Scout Association in its defence of this case at first instance and on appeal.