England and Wales Court of Appeal (Civil Division) Decisions

(HIS HONOUR JUDGE POTTER )

B e f o r e:

- - - - - -

Plaintiff/Respondent

- v -

First Defendant/Appellant

and

Second Defendant

(Computer Aided Transcript of the Palantype Notes of

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MR R LEE (Instructed by Cobbold & Gailey, Lichfield, Staffs. WS13 6LZ) appeared on behalf of the Appellant

MR M STEPHENS (Instructed by Sedhev & Co., Birmingham, B21 9SF) appeared on behalf of the Respondent

The Second Defendant did not appear and was not represented

(As approved by the Court )

©Crown Copyright

LADY JUSTICE BUTLER-SLOSS: I will ask Hutchison LJ to give the first judgment.

LORD JUSTICE HUTCHISON: On 29 February 1988 at Perry Beeches Secondary School in Birmingham two fifteen year old schoolgirls Teresa Jane Mullin and Heidi Richards who were friends and were sitting side by side at their desk were engaged in playing around, hitting each other's white plastic 30 cm rulers as though in a play sword fight, when one or other of the rulers snapped and a fragment of plastic entered Teresa's right eye with the very unhappy result that she lost all useful sight in that eye, something that must be a source, I am sure, of great distress to her and her family.

Teresa brought proceedings against Heidi and the Birmingham City Council, who were the education authority, alleging negligence. It is worth noting that her pleaded case involved facts quite different from those that I summarised a moment ago. My summary reflects the learned Judge's unchallenged findings of fact as well as the case pleaded by Heidi in her defence. The Judge dismissed the claim against the authority, holding that the mathematics teacher, Miss Osborne, whose class was coming to an end when the mishap occurred, had not been guilty of negligence and the plaintiff does not appeal against that decision. The case against the local authority was based only on lack of proper supervision in the classroom on the day in question. However, the Judge having rejected Teresa's and accepted Heidi's version of how the accident occurred, concluded that each had been guilty of negligence, that Teresa's injury was the foreseeable result and that, accordingly, her claim against Heidi succeeded subject to a reduction of 50% for contributory negligence.

Against that decision Heidi now appeals to this court. I have referred already to the fact that it was not the plaintiff's case that the accident happened in the way the Judge found and it is worth just taking a moment to see how things stood on the pleadings.

The plaintiff in her Particulars of Claim had alleged facts which involved that the first defendant, her friend Heidi, had tapped her from behind on the arm on a number of occasions with her ruler. She alleged that she had at some stage stood up and had been minded to go and speak to the class teacher to have this conduct stopped but had refrained from doing that, and there came a time when Heidi hit her again and she put up her arm to shield herself and the ruler broke against her arm, that she turned to the front and then, turning back again, felt some pain or discomfort in her eye, the inference being that at that moment it was that she was injured. The important feature of her account was that she was not doing anything or participating in anything with Heidi and that her accident resulted from the unwelcome attentions of Heidi and her use of the ruler.

In answer to that case, the first defendant by her pleading had denied the account given by the plaintiff and she had said this in the Particulars of Contributory Negligence:

"(i) The Plaintiff was a willing participant in a game in which the Plaintiff was fencing with the First Defendant, with rulers, during the course of which one of the rulers broke.

(ii) If, which is denied, the Plaintiff suffered any injury, the First Defendant will aver that it was caused by a piece of plastic, detaching itself from the broken ruler and hitting the Plaintiff in the eye."

It would have been open to the plaintiff, had she wished to do so, to amend her Particulars of Claim and allege an alternative case based upon the possibility that the Judge might accept the case being advanced by the first defendant, but her advisors chose not to do that, probably for tactical reasons because they thought it would weaken her primary case about which she was resolute and maybe also because they thought that it was a case that was unlikely to be successful, one knows not. But the important thing is that there was no amendment and therefore those two versions were before the Judge. No one was advancing a case of negligence based upon Heidi's version of what occurred.

Most of the judgment of the learned Judge was devoted to resolving the dispute as to whether Teresa's or Heidi's account of what happened was the correct one, a task which the Judge made clear, and I have to say I understand why he said this, and I sympathise with him, was made much more difficult by the fact that the trial was in November 1995, many years after the accident which occurred.

Having rejected Teresa's account the Judge also held that Mrs Osborne, the class teacher, did not really see what had happened. She had said in evidence: "Heidi and Teresa were playing with rulers, playing at a sword fight." Heidi's account was that contained in her pleadings and the Judge said of that:

"I was not willing to accept the evidence of the twins [the twins being a reference to Heidi and her twin sister who gave evidence to the same effect] simple though it was, merely because they repeated it so many times with such enthusiasm. I have had to examine the notes they both wrote close to the event .... I think these ... are far more valuable ...

The first defendant's note is very interesting: ´Me and Teresa were playing around, hitting each other. I hit her with the ruler. It snapped out, went in her eye. It was a pure accident.' Her sister wrote a similar note: ´Heidi and Teresa were messing around, hitting each other. Heidi['s] ruler snapped and accidentally went into Teresa['s] eye. It was a complete accident.'"

When he came to make his findings as to what happened, the Judge, who plainly gave the matter very careful consideration, said this:

"...I conclude on the balance of probabilities that the plaintiff has not correctly stated ... what occurred and that in the concluding stages of the rough play between these two girls it is probable that what was going on was more like what is described by the first defendant and her sister than what is described by the plaintiff."

Neither defendant argued volenti non fit injuria, though the particulars of contributory negligence, as will be recalled from my citation, referred to the plaintiff being a willing participant in the game. The Judge adverted to the absence of any such contention in terms which suggest that he thought it would not have been a possible defence, something as to which I express no opinion. I simply note that it does not arise because it was never raised. The Judge therefore had to determine whether negligence had been proved against either defendant; if so, whether the plaintiff's injury was foreseeable; and whether there was contributory negligence on the part of the plaintiff. What he said on these matters insofar as it relates to the position between Teresa and Heidi was this:

"... I do not think any doubt was raised as to this, that if on the balance of probabilities the two girls were participating on equal terms, or both as free agents participating in an event of horseplay which, as they must both have appreciated became in its concluding stage dangerous because it involved rulers being used with some violence, if those are the findings I make, and they are the findings which, as I say, on the balance of probabilities I feel driven to, then however surprising it may be to the lay mind, the result must be that both were negligent. One cannot describe it as a lawful assault so one could also say that they were mutually engaging in assault, although this does not matter to my mind, and their joint mischievous efforts produced a particular total of unintended damage which happened to fall entirely on one participant rather than both."

The Judge went on to refer to defence counsel's argument on foreseeability, saying this:

"The point was raised by Mr Lee in his helpful argument as to whether what happened was foreseeable or whether I should put it down to something that leads to no liability between them because it was a totally uncovenanted and unforeseeable event. Having considered that, I do not think that it is the view that I take. In fact it is not, because as the matter ended, these girls were playing with a degree of misdirected and dangerous force sufficient to produce the physical and mechanical result that it did, and at fifteen I am satisfied they must both have appreciated that to play like that was dangerous and although the precise injury would not have been foreseen, the danger of physical injury, including injury of this type, must have been readily foreseeable. So on that part of the case the plaintiff succeeds but only as to half."

By her notice of appeal the first defendant contends, first, that there was no or no sufficient evidence for the Judge's finding that she must have appreciated that what she was doing was dangerous; second, that there was no or no sufficient evidence for the Judge's finding that it was readily foreseeable that her conduct might cause injury of the type that the plaintiff sustained; thirdly, that the Judge erred when considering foreseeability by omitting to take account of the fact that the first defendant was not an adult but a 15 year old schoolgirl. What he should have done, it is contended, was to consider objectively what a normal and reasonable 15 year old schoolgirl would have foreseen. Fourthly, it is asserted that the Judge's finding that Heidi must have appreciated that this sort of conduct was dangerous was inconsistent with his finding that it was common in the school and with his conclusion that it was comparatively innocent and the absence of any evidence of prohibition or previous injuries. Finally, it is said that there was no evidence on which the Judge could find that the shattering of the ruler was foreseeable.

So far as negligence is concerned, the relevant principles are well settled and I do not understand there to be any real difference between the views of counsel for the parties to this appeal. I would summarise the principles that govern liability in negligence in a case such as the present as follows. In order to succeed the plaintiff must show that the defendant did an act which it was reasonably foreseeable would cause injury to the plaintiff, that the relationship between the plaintiff and the defendant was such as to give rise to a duty of care, and that the act was one which caused injury to the plaintiff. In the present case, as it seems to me, no difficulty arose as to the second and third requirements because Teresa and Heidi were plainly in a sufficiently proximate relationship to give rise to a duty of care and the causation of the injury is not in issue. The argument centres on foreseeability. The test of foreseeability is an objective one; but the fact that the first defendant was at the time a 15 year old schoolgirl is not irrelevant. The question for the Judge is not whether the actions of the defendant were such as an ordinarily prudent and reasonable adult in the defendant's situation would have realised gave rise to a risk of injury, it is whether an ordinarily prudent and reasonable 15 year old schoolgirl in the defendant's situation would have realised as much. In that connection both counsel referred us to, and relied upon, the Australian decision in McHale v Watson [1966] 115 C.L.R. 199 and, in particular, the passage in the judgment of Kitto J on pages 213 and 214. I cite a portion of the passage I have referred to, all of which was cited to us by Mr Lee on behalf of the appellant, and which Mr Stephens has adopted as epitomising the correct approach: "The standard of care being objective, it is no answer for him, [that is a child] any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent- minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard."

Mr Stephens also cited to us a passage in the judgment of Owen J at page 234:

"... the standard by which his conduct is to be measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience."

I venture to question the word "intelligence" in that sentence, but I understand Owen J to be making the same point essentially as was made by Kitto J. It is perhaps also material to have in mind the words of Salmon LJ in the case of Gough v Thorne [1966] 1 WLR 1387, which is cited also by Mr Stephens, where the learned Lord Justice at page 1391 said this:

"The question as to whether the Plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13 can be expected to have done any more than this child did. I say ´any ordinary child'. I do not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary girl of 13."

I need say no more about that principle as to the way in which age affects the assessment of negligence because counsel are agreed upon it and, despite the fact that we have been told that there has been a good deal of controversy in other jurisdictions and that there is no direct authority in this jurisdiction, the approach in McHale seems to me to have the advantage of obvious, indeed irrefutable, logic. Then, even if the requirements that I have so far summarised are satisfied with the consequence that negligence has been proved, the defendant will not be liable if the injury actually sustained is not foreseeable, that is to say is of a different kind from that which the defendant ought to have foreseen as the likely outcome of his want of care (see in that regard Hughes v The Lord Advocate [1963] AC 837).

Applying those principles to the facts of the present case the central question to which this appeal gives rise is whether on the facts found by the Judge and in the light of the evidence before him he was entitled to conclude that an ordinary, reasonable 15 year old schoolgirl in the first defendant's position would have appreciated that by participating to the extent that she did in a play fight, involving the use of plastic rulers as though they were swords, gave rise to a risk of injury to the plaintiff of the same general kind as she sustained. In that connection I emphasise that a mere possibility is not enough as passages in the well-known case of Bolton v Stone [1951] AC 850, to which Mr Lee helpfully referred us, make clear. I cite some of the passages on which he relied. At page 857 Lord Porter said this:

"But the question remains: Is it enough to make an action negligent to say that its performance may possibly cause injury, or must some greater probability exist of that result ensuing in order to make those responsible for its occurrence guilty of negligence."

At the foot of the following page he said this:

"It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken."

At page 864 Lord Reid said this:

"My Lords, it was readily foreseeable that an accident such as befell the respondent might possibly occur during one of the appellants' cricket matches. Balls had been driven into the public road from time to time and it was obvious that, if a person happened to be where a ball fell, that person would receive injuries which might or might not be serious. On the other hand it was plain that the chance of that happening was small. "

At page 868 Lord Radcliffe made this observation:

"I can see nothing unfair in the appellants being required to compensate the respondent for the serious injury that she has received as a result of the sport that they have organized on their cricket ground at Cheetham Hill. But the law of negligence is concerned less with what is fair than with what is culpable, and I cannot persuade myself that the appellants have been guilty of any culpable act or omission in this case."

I have omitted to cite two further passages which were referred to in the speech of Lord Normand at pages 860-861 and Lord Oaksey at page 863 which are to the same effect.

I do not propose, in the light of the conclusion to which I have come without hesitation in this case, to deal individually with all the grounds of appeal, though I should mention in relation to the third ground, which asserts that the Judge treated the first defendant as an adult and not as a 15 year old child, that I reject that contention. It seems to me that his reference to the age of the two girls in the passage which I have cited from his judgment shows that he had in mind the correct principles. Accordingly I would hold that he approached the matter in that respect in the correct way.

However the question of actual foreseeability (that is to say the application of that correct approach in law to the facts) raises, in my judgment, great difficulties. First, there certainly was no evidence as to the propensity or otherwise of such rulers to break or any history of their having done so. There was evidence which the Judge does not say he rejects and which he may, since it was an admission against interest, be taken to have accepted, that ruler fencing was commonplace. That is to be found in the evidence of Heidi herself who said this. She was asked:

"Q. As far as this business of fencing with rulers is concerned, was this the only time you had ever done that? A. No, it was a popular game at school."

Miss Osborne, the teacher, was asked questions to the same effect at page 39:

"Q. ... Had you seen this game going on around the school?"

She said:

"A. Yes, I knew it was a common game with pupils."

While I am dealing with her evidence I should mention an answer on which Mr Stephens places particular reliance. The Judge asked her:

"Q. ... did you think perhaps it was a thing to stop because it might be dangerous?

A. Yes, and it was also unacceptable behaviour in the classroom."

It seems me that though she assented to the Judge's proposition that she would stop it because it was dangerous, the point she was really making was she would stop it because it was unacceptable conduct in the classroom. There was no evidence at all that the practice was banned or even frowned on. There was no evidence that it was discouraged in any way. The question of foreseeability therefore has to be judged against that background, the prevalence of the practice, the absence of prohibition, the absence of warning against it or of its dangers and the absence of any evidence of there having been any previous injury as a result of it. The further point can be made, which is that the Judge's finding, if that is the right description of it, that excessive violence was used by either girl is not supported by any evidence so far as I can see. It has to be remembered that he had rejected Teresa's account which did involve a relatively heavy blow on her forearm and there is no reason to think that in rejecting it he had, as it were, preserved and resurrected that one part of it: and the passages in which Heidi gives her account of the mock fencing do not bear the construction that any degree of violence was being used. Indeed there are passages in the evidence elsewhere that indicate that the two girls were not even trying to knock the rulers out of each other's hands but merely to touch rulers, as it were, in mock fencing.

There was, therefore, as it seems to me, no evidence to support the finding that these two girls were guilty of using misdirected and dangerous force, which is one of the Judge's phrases, or that there had been a violent clash of rulers or that the rulers had been used with some violence, which are other phrases that he used. This had not been said by the first defendant in her evidence. It had not been suggested to her at any stage. I pause to interpolate that not only was that case never put, but it is at least doubtful whether it was urged in argument as an alternative basis for a finding of negligence, though for present purposes I shall assume that it may have been. Mr Stephens was not present at the trial and has no instructions on the matter.

The Judge, it seems to me, found negligence without there being material on which he could properly do so. He seems indeed from the language he used to have regarded it as axiomatic that if there was a fight going on, such as he found there was, a play fight, that imported that injury was reasonably foreseeable and from his finding that the ruler broke that there was necessarily dangerous or excessive violence. For my part, I would say that in the absence of evidence one simply does not know why the ruler broke, whether because it was unusually weak, unlike other rulers; whether because it had been damaged in some way; or whether because rulers of this sort are particularly prone to break; one does not know. What certainly one cannot infer, and the Judge was, I consider, not entitled to infer, was that there was here excessive violence or inappropriate violence over and above that which was inherent in the play fencing in which these two girls were indulging. This was in truth nothing more than a schoolgirls' game such as on the evidence was commonplace in this school and there was, I would hold, no justification for attributing to the participants the foresight of any significant risk of the likelihood of injury. They had seen it done elsewhere with some frequency. They had not heard it prohibited or received any warning about it. They had not been told of any injuries occasioned by it. They were not in any sense behaving culpably. So far as foresight goes, had they paused to think they might, I suppose, have said: "It is conceivable that some unlucky injury might happen", but if asked if there was any likelihood of it or any real possibility of it, they would, I am sure, have said that they did not foresee any such possibility. Taking the view therefore that the learned Judge - who, as I have said, readily and almost without question accepted that on his findings of fact there was negligence on the part of both these young ladies - was wrong in his view and there was no evidence on which he could come to it, I would allow the appeal and direct that judgment be entered for the first defendant. I have to say that I appreciate that this result will be disappointing to the plaintiff for whom one can have nothing but sympathy, because she has suffered a grave injury through no fault of her own. But unfortunately she has failed to establish in my view that anyone was legally responsible for that injury and, accordingly, her claim should have failed.

SIR JOHN VINELOTT: I agree. It seems to me that, in the passage which my Lord, Hutchison LJ, has cited at length at the very end of his judgment the learned Judge comes very close to saying: "This accident happened. It must therefore be the case that these young ladies were playing with these rulers with a degree of misdirected and dangerous force sufficient to cause a ruler to break or splinter as a result of which injury was caused; it was and must have been an injury which was reasonably foreseeable". That is an inappropriate approach. There was in fact no evidence that the ruler broke because the mock fight was carried on with dangerous force and, equally, there was no evidence that physical damage would be likely to result if a ruler broke or splintered in the course of that activity. In the absence of any sufficient evidence on those two points, it seems to me that the conclusion that the learned Judge reached was unfounded.

LADY JUSTICE BUTLER-SLOSS: I agree with both judgments and since there has been little earlier authority on the proper approach to the standard of care to be applied to a child, I would like to underline the observations of my Lord, Hutchison LJ, and rely upon two further passages in the persuasive judgment of Kitto J in the Australian case in the High Court of Australia in McHale v Watson , starting at page 213 and following on from the passage read by my Lord:

"In regard to the things which pertain to foresight and prudence experience, understanding of causes and effects, balance of judgment, thoughtfulness it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults; the very concept of normality is a concept of rising levels until ´years of discretion' are attained. The law does not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances. But up to that stage the normal capacity to exercise those two qualities necessarily means the capacity which is normal for a child of the relevant age; and it seems to me that it would be contrary to the fundamental principle that a person is liable for harm that he causes by falling short of an objective criterion of ´propriety' in his conduct- propriety, that is to say, as determined by a comparison with the standard of care reasonably to be expected in the circumstances from the normal person to hold that where a child's liability is in question the normal person to be considered is someone other than a child of corresponding age."

I would respectfully endorse those observations as entirely appropriate to English law and I would like to conclude with another passage of Kitto J particularly relevant to today:

"... in the absence of relevant statutory provision, children, like everyone else, must accept as they go about in society the risks from which ordinary care on the part of others will not suffice to save them. One such risk is that boys of twelve may behave as boys of twelve;",

and I would say that girls of 15 playing together may play as somewhat irresponsible girls of 15.

I too would allow this appeal.

The appeal is allowed; the findings and the award of damages are set aside; and we substitute judgment for the first defendant.

Order: Appeal allowed; order set aside; judgment entered for the first defendant with costs below, not to be enforced without leave; legal aid taxation on scale 2 for both parties below and with costs of the appeal not to be enforced without leave; legal aid taxation of both parties' costs.