"So, is awarding him damages for an injury suffered playing the game, "Objects in the Dark", not an example of an overprotective nanny state robbing youth of fun simply because there was some risk involved in the exercise? Is this a decision which emasculates those responsible for caring for our children and in so doing, enfeebles the children themselves? Where do you draw the line? I have found that hard to answer".

These are the words of Lord Justice Ward in a recent English Court of Appeal decision in which damages were sought from the Scout Association for injuries sustained by a 13 year old boy arising from a game that involved boys running around a hall, and then, once the lights were turned out, securing a block to themselves (there were more boys than blocks). The boy in question collided with a wall. He sustained relatively minor injuries.

Breach of Duty

The question of law is whether or not the Scouts had breached their duty to take reasonable care for the safety of the boy(s) in question. The Scout Association was found liable for damages at first instance. The test set out by Lord Hoffman in Tomlinson v Congleton Borough Council seems clear enough. Where there arises a duty to take reasonable care, "such care as in all the circumstances of the case is reasonable depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other".

Decision

In a considered judgment it was ruled that the game in question could be played perfectly well with the lights on, and that the increased risk brought about by playing the game in the dark (which ought to have been plain) outweighed any perceived wider societal value or benefit brought about by letting the boys enjoy, and the Scouts provide, a more "exciting" game. In essence, was the benefit of fun worth the added risk? The judge at first instance thought not - though deliberated at length. That decision was appealed to the Court of Appeal by the Scout Association owing to the wider implications of the decision.

Appeal Court

The Court of Appeal upheld the judgment. The decision was not unanimous. In his dissenting Opinion, Lord Justice Jackson gave a powerful account of his reasons for doing so. In his concluding remarks he reminded the Court that "it is the function of the law of tort [Delict in Scotland] to deter negligent conduct and to compensate those who are the victims of such conduct. It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities".

The wider social value, of both the Scouting movement and, insofar as the game in question was concerned, the added "excitement" playing in the dark brought to the game (which, it was submitted, encouraged membership of the Scout Association) was considered. While the wider social value of the Scouting movement was beyond reproach, the wider benefit of the added "excitement" in this particular game did not outweigh the obvious added risks, particularly where, when considering the test above, the cost of prevention was simply to leave the lights on.

Comment

This decision will divide opinion. Youth groups, or others involved in providing community or activity groups for the young, and old, should be aware of the responsibilities incumbent upon them. In this day and age, most probably are. Nevertheless, be proactive in considering and managing risks. Stay vigilant.