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.
Updated 20 March 2026
This case summary remains accurate. Orchard v Lee [2009] EWCA Civ 295 is correctly cited and the legal principles described reflect the Court of Appeal’s reasoning. The standard applied to child defendants — that of a reasonable child of the same age, derived from Mullin v Richards [1998] 1 WLR 1304 — remains good law. No subsequent statutory changes or appellate decisions have materially altered this position. The article is suitable for current study purposes.
