When simple horseplay involving throwing a bit of bark is forensically analysed by a judge
What happened?
Four boys were out playing when they started throwing pieces of bark chippings and twigs at each other. One of the boys, aged fifteen years, threw a piece of bark chipping at another boy, hitting him in the leg. The boy picked it up and threw it back at the boy who had thrown it. The piece of bark struck his eye resulting in serious injury.
The injured boy (the claimant) brought an action contending that the injury was caused by the battery and or negligence of the other boy (the defendant).
Legal Outcome
The trial judge rejected the defence of volenti (ie the boy had consented to the risk of being injured), agreed that there had been negligence, but held that the damages should be reduced by 50% due to contributory negligence.
The defendant appealed, contending that there was no breach of duty and that the judge was wrong to reject the defence of volenti.
The appeal was allowed. In the context of ‘horseplay’ there is a breach of the duty of care only where the defendant’s conduct amounts to recklessness or a very high degree of carelessness. The defendant had consented to the risk of injury occurring within the conventions and understanding of the game.
Lord Justice Dyson went on to say:
“If the defendant in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the claimant, or deliberately aimed the piece of bark at the claimant’s head, then there might have been a breach of the duty of care. But what happened here was, at its highest, “an error of judgment or lapse of skill”, and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the defendant’s conduct came nowhere near recklessness or a very high degree of carelessness.”
What can we learn from what happened?
This is just a very good example of how a simple game involving the throwing of a bit of bark can be so forensically analysed in order that a legal judgement can be made.
In this case, the throwing of the bark, with no malice intended, was within the bounds of normal ‘horseplay’, whereas the introduction of a different, more dangerous, projectile such as stone might have tipped the appeal judge into agreeing with the original judgement.
These legal cases are rarely straight-forward, which is why they end up in court. And this is another example (and there are many) of an initial judgement siding with the injured party, and then the appeal reversing the judgement when scrutinised by a more senior judge.
The more of these cases I look at, the more it is the case that genuine accidents do not result is legal liability.
Source of Information
E-Law Resources