Orchard v Lee - 2009

Orchard v Lee [2009] EWCA 295

NEGLIGENCE – BREACH OF DUTY – CHILDREN

Facts

The claimant was a school dinner lady acting as a supervisor in a children’s playground. She sustained injuries when a 13-year-old boy ran backwards into her while playing a game of tag. She sued the boy in the tort of negligence,

Issue

Establishing negligence involves showing that the defendant owed the claimant a duty of care, which they breached in a manner that caused the claimant recoverable harm. It was not disputed that the boy owed the supervisor a duty. However, to establish a breach, the claimant must establish that the defendant failed to act as a reasonable person would in their position.

The issue was whether the boy had breached his duty of care, and the relevance of his age.

Decision/Outcome

The Court of Appeal held that the boy had not breached his duty of care, and so was not liable.

Mullin v Richards was cited as authority for the proposition that a child is only held to the standard of a reasonable child of his age rather than a reasonable adult. As such, the Court of Appeal noted, the level of careless conduct required for a breach when the defendant is a child will be very high.

The requisite level of carelessness will not be found where, as was the case here, the child is playing a game in a playground, not breaking the rules of that game, and not behaving in a manner which is significantly outside of the norms of a game of that nature played by 13-year-olds.

As it is normal for 13-year-olds to do careless things like run backwards while playing tag while not foreseeing injury resulting from their actions, the defendant was not in breach.