Law Weblog

Boy not culpable – playing tag in playground is okay

Tuesday 7 April 2009 at 6:15 pm | In News | 2 Comments On 3 April, Michelle Orchard 42 failed in her claim against schoolboy Sebastian Lee, who ran into her while playing tag at Corfe Hills School, Corfe Mullen near Poole in Dorset, in January 2004. After six weeks in hospital she was left with a broken nose and damaged teeth, and her lawyers say she also suffered serious brain damage, leading to partial paralysis and balance problems. Sebastian was 13 at the time of the incident.

O v L [2009] CA

[Negligence – duty to take – foreseeable harm – child]
D aged 13, seriously injured a playground supervisor when he bumped into her whilst playing tag with another boy. D was in a play area and not breaking any rules.

Held: For a child to be held culpable for his conduct in games in general, the conduct had to be careless to a very high degree.

D’s conduct had been that which was to be expected of a 13 year old playing tag. No part of his conduct had been outside the norm where such a game was being played, let alone a significant degree outside the norm. No ordinarily prudent and reasonable 13 year old boy playing tag in the courtyard and walkway would reasonably have foreseen the risk of injury, namely, injury beyond that normally associated with a game of tag.

D won

Comment: McHale v Watson considered; Mullin v Richards [1998] considered; Blake v Galloway [2004] considered.

Per Curiam: Parents and schools are there to control children, and it would be a retrograde step to visit liability on a 13-year-old for simply playing a game in the area where he was allowed to do so.