Mullin v Richards [1997] EWCA Civ 2662; [1998] 1 WLR 1304
Negligence, children and the standard of care.
Facts
Teresa Mullin and Heidi Richards were 15-year-old friends at Perry Beeches Secondary School in Birmingham. On 29 February 1988, they were sitting beside each other and playing a mock sword fight with plastic rulers. One ruler broke, and a fragment entered Teresa’s right eye, causing her to lose all useful sight in it.
Teresa sued Heidi and Birmingham City Council, the education authority. The trial judge rejected Teresa’s account that she had been an unwilling victim and accepted that both girls had participated in the game. He dismissed the claim against the council but found both girls negligent, reducing Teresa’s damages against Heidi by 50% for contributory negligence. Heidi appealed. Teresa did not appeal against the council’s dismissal.
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Issues
The main question was whether the evidence justified finding that a reasonable 15-year-old in Heidi’s position would have foreseen a sufficient risk of injury from the game. The girls owed each other a duty of care, and causation was not disputed. The dispute concerned foreseeability and whether Heidi had fallen below the required standard of care.
Decision
The Court of Appeal unanimously allowed Heidi’s appeal. It set aside the negligence findings and damages award and entered judgment for her.
Reasoning
The standard was objective, but it took account of the defendant’s age. Heidi’s conduct had to be judged against that of an ordinarily prudent and reasonable 15-year-old schoolgirl in her situation, rather than a reasonable adult. The court endorsed the approach in McHale v Watson (1966) 115 CLR 199: normal limitations associated with childhood were relevant, while a defendant’s personal shortcomings did not simply lower the standard.
The trial judge had actually applied the correct age-based approach. The appeal succeeded because his findings of dangerous force and foreseeable injury lacked an adequate evidential basis.
Ruler fencing was commonplace at the school. There was no evidence of a prohibition, warnings, earlier injuries or a tendency for these rulers to break. The evidence also did not establish that the girls had used excessive force. The judge could not infer dangerous conduct merely because a ruler had broken and a serious injury had occurred.
A remote possibility of some accident was insufficient. In the circumstances established by the evidence, the court could not attribute foresight of a significant risk of injury to a reasonable child of Heidi’s age. Negligence had therefore not been proved.
The point illustrated
The decision shows how age affects the objective standard of care without making the test depend solely on what the particular child thought. It also distinguishes a tragic outcome from proof of negligent conduct. The court did not hold that children can never be liable for injuries during play; it decided that this claim failed on the evidence before it.
