Law report: Game played in the dark raised injury risk to unacceptable level

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This law report has been contributed by national law firm Berrymans Lace Mawer.

The Scout Association v Barnes (Court of Appeal - 21 December 2010)

The claimant was a scout and, on the day of the accident, he was playing a game called 'objects in the dark'. This involved placing a number of blocks in the centre of the hall and, at a given moment, the lights would be switched off. The boys would then rush to the middle of the hall to grab a block.

While playing the game the claimant ran to pick up a block. When chasing a block, he collided with a bench positioned by the wall, sustaining injuries to his head and shoulder.

At first instance, the judge found that the defendant had breached its duty to take reasonable care. He concluded that while a game called 'grab' was in a book of games for scouts, this game was played with the lights on. The game played by the claimant was effectively played in the dark. This significantly increased the risks and the judge found that the game was dangerous.

The defendant appealed, mainly as it was concerned about the wider implications. It believed that the judge had failed to consider the social benefit of scouts partaking in such activities.

With a majority of 2:1, the Court of Appeal upheld the judge's decision. It concluded that, while the social value of scouting activities had to be considered and that there were clearly elements of risk in such activities, in this case the level of darkness increased the risk of injury to an unacceptable level.

Comment
While this accident pre-dated the Compensation Act 2006, the issues discussed by the Court of Appeal judges were directly relevant to section 1 of that Act. Lady Justice Smith summarised that the law of tort should not stamp out socially desirable activities which had an element of risk. However, the degree of risk had to be assessed on an individual basis.

Interestingly the dissenting judge was Lord Justice Jackson, who was of the view that the risks were reasonable and would have allowed the appeal on the grounds that a desirable activity was taking place.

Therefore, section 1 of the Compensation Act clearly has its place and socially acceptable activities should not be precluded, even if there is an element of risk. In this case the court was of the view that the risk involved outweighed the social benefits, but, on another day, a different decision may have been reached.
James Harms, BLM Birmingham

Source: Post – 3 February 2011

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