The Scout Association v Barnes [2010] EWCA Civ 1476 (Lord Justice Ward, Lady Justice Smith and Lord Justice Jackson)

When 13 years of age, the claimant suffered injuries valued at £7,000 in an accident during an activity organised by his local scout troupe.

He was engaged in a game called ‘objects in the dark’. This involved 10 small wooden blocks being placed in the centre of a hall. The boys ran or jogged around the outside of the hall, with half of the main lights turned off. At a given point, the remainder of the lights were switched off and the boys then ran into the middle to grab a block. The one who did not grab a block was eliminated. It is noteworthy that when the main lights were turned off, the hall was not in pitch-darkness as there was some emergency lighting as well as other sources from a light outside the hall. Nonetheless, it was dark. Unfortunately, the block that the claimant tried to grab had been inadvertently kicked by one of the other boys and it travelled towards a wall. In chasing after it, the claimant tried to stop, fell to the floor and hit his shoulder and head against a bench which was standing against the wall.

At first instance, the claimant won.

On appeal, three experienced judges of appeal were in disagreement, with Lord Justice Jackson being in the minority.

His judgment was the first given. He accepted that the lack of illumination increased the risk of the game. However, he added: ‘Many physical recreations involve a degree of risk. Rugby, cricket or skiing are just three examples.’ He felt the judge had not considered Lord Hoffmann’s decision in Tomlinson v Congleton Borough Council [2003] UKHL 47, which introduced the test of balancing the likelihood that someone may be injured and the seriousness of the injury which may then occur, with the social value of the activity which gives rise to the risk. This was because the judge didn’t make reference to Tomlinson directly in his ex tempore judgment.

His Lordship felt that the exercise was structured, and noted it had been played on many occasions before without mishap. He stated: ‘I do not see how it could possibly be said that these increased risks outweighed the social benefits of the activity.’ He then went on to a judicial soapbox by saying that it was not the function of the law of tort to ‘eliminate every iota of risk’ or to ‘stamp out socially desirable activities’.

His two fellow judges disagreed.

Lady Justice Smith stated that everyone accepted that scouting activities are valuable to society and will often properly include an element of risk – but the level of risk has to be acceptable. The introduction of darkness did not add any other social or educative value to the exercise, other than to make it more exciting for the boys, but it did significantly increase the risk of injury. Such cases must be decided on an individual basis and that is what the judge had done.

Lord Justice Ward found that this was not an example of ‘an over-protective nanny state robbing youth of fun simply because there was some risk involved in the exercise’. He held that the judge had in mind the social value of the game and had carried out the balancing exercise of Tomlinson in looking at the social value of the activity giving rise to the risk together with the cost of preventative measures, against the fact that it was more fun playing in the dark, though it was riskier, and less fun and less risky playing with the lights on.

ConclusionThe facts of this case are simple. A child could understand them and, indeed, a child was taking part in the activity. The claim was of lower-end fast-track value, and yet there was a division in the Court of Appeal in assessing liability. Two well-respected judges, with strong personal injury experience, took a different view to that of Lord Justice Jackson who has, of course, recently prepared a report which attempts to box such claims into a very tight costs regime on the basis, in part, that they do not merit the investigation and attention of lawyers and judges on a proportionality basis.

Barnes was entitled to his day in court. He succeeded at first instance and it was not his choice to go to the appeal court. There, Lord Justice Jackson rejected his claim. Fortunately, for Barnes, the other judges did not. This case exemplifies why one cannot readily categorise personal injury claims by reference to an equality of damages and complexity.

Simon Allen is joint head of the national personal injury department at Russell Jones & Walker and managing partner of the Sheffield office