3.4.09  

Court of Appeal confirms boy playing tag at school was not liable for accident involving lunchtime supervisor.  

On 27 January 2004 Sebastian Lee, then aged 13, was playing tag with another boy at school. They were playing in a courtyard and part of a walkway, which was the social area for their age group. Whilst running backwards and taunting another boy, Sebastian ran into Michelle Orchard, who was working as a lunchtime supervisor at the school, causing fairly serious injuries. Mrs Orchard brought a claim against both boys. At the time of the accident, it was not against school rules to run in the walkway and many boys regularly ran in the area. At the first instance hearing Sebastian gave evidence that he had seen Mrs Orchard before the collision but thought he would not go near her. The claim was dismissed, the Judge being satisfied that it was a simple accident caused by “boys doing what boys do.” Mrs Orchard appealed against the finding relating to Sebastian.  

Held: It was not in issue that Sebastian owed a duty of care to Mrs Orchard. However, it was necessary to consider whether he “was conducting himself in the way he played tag in a manner in which a 13 year old boy would reasonably foresee there was likely to be injury beyond that normally occurring while a game of tag was in progress.” The Court of Appeal held that the conduct of Sebastian was simply the conduct to be expected of a 13 year old playing tag. The appeal was dismissed.  

Comment: The Court of Appeal commented that it felt sympathy for Mrs Orchard. However, agreeing with the judge at first instance, it stated “13 year old boys will be 13 year old boys who will play tag … If that is what they are doing and they are not breaking any rules they should not be held liable in negligence.”  

Potential defendants and their insurers will be reassured to see that, perhaps unsurprisingly, the Court of Appeal has upheld the first instance decision in this case. Had Mrs Orchard been successful, it would have served to encourage other claims against children, which would not have been a desirable outcome.