England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Birmingham Civil Justice Centre Bull Street, Birmingham, B4 6DS
		12/03/2018

Mrs Justice Whipple:

Introduction

1. SSR was 9 years old on 14 September 2013 when he was hit on the side of his face by a golf club swung by his friend, J, who had just turned 10. SSR sustained serious damage to his left eye, the consequence of which is that he has now lost all vision in that eye. The damage is permanent.
2. SSR was one of three guests invited by J's parents to celebrate J's birthday with J at an amusement park owned and operated by Bosworth Water Trust ("Bosworth"). The other two guests, BP and SM, were aged 10. The four, all boys, were at that time at school together.
3. At the time SSR sustained the injury, the four boys were playing crazy golf on the course which forms part of the amusement park. J's mother had paid for the boys to go on the course which has 12 holes. She had paid at Bosworth's shop close to the crazy golf course. Each boy had been given a metal putter by Bosworth's employee. J's father had gone back to the car and was a little distance away. J's mother was near to the crazy golf course perimeter, with her dog. The boys had played a number of holes when J got frustrated on one of the holes and took a full swing with his club. The club came into contact with SSR's head. J's mother did not see the incident but she heard SSR scream and went to help him.
4. SSR by his father and litigation friend (as Claimant) sued Bosworth (as the First Defendant) and J's parents (as the Second and Third Defendants) for damages arising out of their negligence in causing or permitting SSR to sustain injury. The Defendants all denied liability.
5. The trial came before HHJ Hampton sitting in the Leicester County Court over three days in March 2017. She gave judgment on the third day. She found Bosworth was liable to SSR but that J's parents were not liable to SSR.
6. Bosworth appealed against her decision. Permission to appeal on four out of five grounds was granted to Bosworth by O'Farrell J, by order dated 27 October 2017. The fifth ground related to the Judge's finding that SSR had not contributed by his own negligence; permission to appeal was refused on that ground.
7. SSR appealed against the dismissal of his claim against J's parents. Permission to appeal was granted to SSR by Yip J, by order dated 19 December 2017.
8. The appeal came before me on 21 February 2018.
9. The effect of the two orders granting permission to appeal to Bosworth and SSR respectively was to put in issue on this appeal all matters going to liability, except contributory negligence on the part of SSR in relation to which permission had not been granted and in relation to which there was no application to renew. The consequence is that it is now settled that SSR was not responsible in any way for what happened to him.

The amendment to the Judgment

10. The Judge gave judgment orally (ex tempore) in the presence of the parties. The judgment was then transcribed. The solicitors acting for J's parents spotted what they thought was an error in the judgment. At [54], the original transcript read thus:

"…. I find J was a boy whose behaviour might require, and I find on the balance of probabilities did require, firm handling, and this was a situation in which close supervision should have been imposed on him and it is not a case where bad or dangerous behaviour was foreseeable from J himself".

11. The solicitors' own note of the judgment suggested that the sentence about close supervision, when articulated in Court, had contained a "not". The solicitors wrote to the Court to question the accuracy of the transcript. The Court referred the matter to the Judge and the message came back that the transcript was incorrect and the sentence should read "this was not a situation …".
12. SSR, represented by Mr Hunter QC (who did not appear below) and Mr Wright (who did appear below), accepts that the Court has the power to correct a slip of this nature pursuant to CPR 40.12 but Mr Hunter suggested in his skeleton argument that the parties should have been invited to make observations before the correction was made citing Space Airconditioning plc v Adrian Guy and Anor [2012] EWCA Civ 1664 at [53]. Mr Hunter did not press this argument at the hearing.
13. I am quite satisfied that in this case the omission of the "not" was simply an error which had not been identified before the transcript was sent out to the parties. I shall approach the case on the basis that paragraph 54 does include, and should always have included, the word "not" to reflect the Judge's finding that although J needed firm handling, he did not require close supervision. I shall return to paragraph 54 later in this judgment.

The Judgment

14. The judgment runs to 103 paragraphs and contains a detailed review of the evidence and clear findings of fact leading to a conclusion on liability. I summarise the Judgment below, taking the points roughly in the order in which they are set out in the Judgment.
15. The Judge first considered whether J himself was, as SSR contended, volatile, unpredictable and sometimes violent. J's parents denied this, saying that he was a normal and well-behaved boy. The Judge examined a range of evidence about J's behaviour and was invited to adjourn the trial in order that the legal team representing SSR could obtain more evidence going to that issue. At [25] she refused the application for adjournment saying that:

"I already had evidence before me … that J was a challenging child who was capable of misbehaviour from time to time."

16. At [29] she repeated her conclusion that J was a boy who could present challenging behaviour and had required "firm handling". She rejected the picture painted by SSR to the effect that J was volatile and unpredictable and at [35] recorded her conclusion that he was "a challenging child, but not one who is out of control and engaging in seriously violent behaviour…". So far as his behaviour and general personality were concerned, she found at [36] that he could be boisterous, he required firm handling, and he could present difficult behaviour in the school context. She then referred to other evidence that she had heard from two witnesses, Mr C and Mr Wt, that in a sporting context he was amenable to guidance and coaching and could be seen to be well-behaved. She noted that there was evidence to suggest that he was not difficult at home and his difficulties tended to occur at school.
17. The Judge drew her conclusions on this aspect of the case at [38]:

"The conclusion that I reach as to J's personality and general behaviour is that although he was a child who required firm handling and who did require supervision to ensure that impulsivity did not get the better of him, nevertheless he was not a dangerous child, nor did he show any signs outside of a schoolroom context nor, indeed, it would seem in a schoolroom context, according to the records which I find to be relevant, of being a violent child."

18. Mr Lewers who appeared (here and below) for J's parents sought to minimise the effect of this finding, suggesting that the Judge had accepted that J's difficulties were confined to the school environment. I do not understand the Judge to have accepted that proposition, which was in essence the case advanced on this point by J's parents. Rather, the Judge concluded that J did require "firm handling" and "supervision to ensure that impulsivity did not get the better of him": this was a general comment on J's personality and behaviour which was not confined to the school environment. She went on to say that he was not a dangerous child, and that signs of violence – which he had in the past exhibited - were only present within the school environment. This latter finding was, indeed, limited to his personality and behaviour while at school.
19. The Judge confirmed her general conclusions at [53] where she stated that J was not a problem to control when he was away from school and engaged on sporting activities, but that "Mother, of course, ought to have been aware, … that sometimes J's behaviour could be problematical" and she concluded at [54] in a passage to which I have already referred, that on this day, J required "firm handling".
20. The Judge made clear findings, in these passages, that J did have some behavioural issues outside the school environment. This was to reject J's parents' case that J had no such problems at all. It was also to reject SSR's case that J had serious behavioural problems including a propensity for violence even outside school. She found that the truth lay somewhere between these two extremes. She determined that outside of school J was boisterous and sometimes impulsive and that this behaviour was manageable with firm handling as his Mother knew or ought to have known; but that outside of school, he was not violent.
21. I mentioned earlier in this judgment that I would come back to [54]. That paragraph, as amended, reads as follows:

"…. I find J was a boy whose behaviour might require, and I find on the balance of probabilities did require, firm handling, and this was not a situation in which close supervision should have been imposed on him and it is not a case where bad or dangerous behaviour was foreseeable from J himself".

22. I confess that I have struggled to follow what the Judge said at the end of that paragraph, to the effect that "bad or dangerous" behaviour by J could not be foreseen. The Judge had already concluded that J had behavioural issues; indeed, those issues were the reason she concluded that he required firm handling. Thus, on her own findings of fact based on the evidence before her, it was foreseeable that his behaviour could be "bad", which is (surely) a synonym for "problematical" or "boisterous" or needing "firm handling" – terms that she had earlier used. She did not think that he was dangerous (by which I understand her to mean that he lacked a propensity to violence outside the school environment) and I accept her finding that dangerous behaviour could not be foreseen. I doubt anything turns on this point, but if it does, I conclude that the possibility that J would exhibit bad behaviour was foreseeable. This reflects the Judge's findings at [25], [29], [35], [36], [38] and [53].
23. The Judge then went on to consider what measures needed to be taken to enable the boys to play safely on the crazy golf course. She concluded at [55]:

"I find on the balance of probabilities it was appropriate that the boys should have been given clear instructions as to how to behave on the golf course, how to use the putters with which they were provided and they should have been supervised in the course of their game."

24. She did not state, at this stage in her judgment, who she believed was responsible for giving those instructions and providing that supervision.
25. She then considered Bosworth's evidence that no formal risk assessment had been undertaken before the accident occurred, and there were no rules posted anywhere in the shop or on the course. She said it was reasonable for Bosworth to expect parents to supervise their children and ensure that they behaved well (at [59]). She referred to measures put in place since the accident, namely a risk assessment, a notice informing players of the rules of play, and the use of rubber putters ([60] and [94])). She also referred to risk assessments produced in evidence from other crazy golf businesses, although the Judge said that these did not take the matter further [62].
26. She noted the absence of a risk assessment and that there were no firm or clear rules as to the use of the crazy golf course, set out as information for park users and for the guidance of parents whose children might be using the facilities [63].
27. She recorded Bosworth's case that it was implied that J's parents were responsible for the supervision, custody and care of the boys while they were on the crazy golf course. She referred to the Compensation Act 2006 and reminded herself to use common sense and take a reasonable and realistic approach. She said that notices were commonplace at leisure facilities such as public swimming baths to remind adults to supervise children in their care and where necessary to give simple rules and guidance. In relation to Bosworth, she concluded as follows:

"[68] The evidence of Mr C and Mr Wt demonstrates that J was amenable to coaching and instruction when playing rugby. Accordingly, I find on the balance of probabilities that J would have been amenable to firm instructions not to swing the club and not to engage in unruly behaviour. But such instructions were not available from the First Defendant at the time of the accident.

[69] A simple rule, such as not raising the club or the putter that the children were provided with above knee, or waist height and that to do so would amount to a penalty for the game or possibly the party being asked to leave, would, I find, have provided sufficient deterrent for a child who [is] capable of receiving guidance in a sporting context such as J."

28. She stated that the boys would be capable of reading and understanding instructions and that "if they [ie instructions] had been present on the course they could have been read and would have been read and understood by them [ie the boys]" (see [72]).
29. She then turned to consider the position of J's parents. There was conflicting evidence about what, if anything, J's mother had said to the boys before they started to play and where she was while they were playing and when the accident occurred. Resolving the conflicts of evidence, the Judge held at [72] that some instruction was given by J's mother, but that there was insufficient evidence to come to any conclusion on the balance of probabilities about what that instruction involved. She held that J's mother was "nearby" when the accident happened, although the Judge could not say whether J's mother was by the fence marking the perimeter of the crazy golf course as she claimed ([85]).
30. She made findings about how the accident occurred. She concluded that J had become annoyed on one of the holes around half way round the course. He was annoyed because he "could not really do it". He took a big swing "like a professional golfer" (see [74]). This was not the first big swing that he had taken ([76]).
31. (The Judge did not explain in terms how she came to conclude that J had already taken a big swing before taking the swing which hit the Claimant. But it was common ground at the hearing before me that the Claimant had given unchallenged evidence that J had been swinging the club around on a different hole, "maybe a couple of holes before". I infer that the Judge accepted this evidence, as she was entitled to do, as the basis for the finding at [76].)
32. The Judge found that the Claimant was standing upright on the bricked area beside the hole. He had not approached J and nor was he bending down to take his own shot, as J's parents had asserted. (Thus, in due course she rejected the allegation that the Claimant had contributed to the accident by his own negligence.) She held that the accident happened because J was getting frustrated. He took a backward swing because he was annoyed at his lack of success. That swing came into contact with the Claimant's head with the considerable force which expert evidence indicated would have been required to cause this injury. This was a form of "bad behaviour and loss of control" by J. (Paragraphs [78]-[81]).
33. The Judge then came to her conclusions on liability. She returned to Bosworth's case. She was not impressed with the evidence of Mr McRoberts, who had given evidence for Bosworth. She thought he had a rather "casual and laissez-faire" attitude to risk, risk assessment, instruction, guidance and control of the leisure park (see [97]). A simple rule, enforced by some sort of penalty by way of points, disqualification from the game or being asked to desist if the putter was raised, was a simple instruction which could have been given [98].
34. She said at [99]:

"Bearing in mind what I have heard about J's ability to accept instruction and to behave well in sporting context, such an instruction would be easily understood and could be followed by him on the balance of probabilities, I find would have prevented the situation that arose."

35. As to J's parents, she said this at [100]:

"I have given anxious consideration to the question of liability in this case. Notwithstanding the remarks that I have made about J's behaviour, I find that there was a level of supervision and instruction, on the balance of probabilities, of J's parents."

She dismissed the claim against J's parents (at [103]).

36. She held that there was a want of care by Bosworth in failing to give written instructions by an appropriate notice in the shop and on the golf course, failing to provide for such a rule, and failing to take steps to ensure that it was enforced. She found causation was established:

"[102] Had clear instructions and warnings been given, I find on the balance of probabilities that J would have had cause to think again. He would have known that swinging the club in the way that was described by the boys was prevented by the rules of the game. He would not have behaved in that way and, accordingly, the accident would not have occurred."

37. She found the case against Bosworth proved on the basis that the failure to carry out appropriate risk assessments, to give appropriate instructions and warnings in relation to the risk posed by a child being hit by a golf club, was the cause of the Claimant's accident and Bosworth was accordingly liable ([103]).

The Appeals

38. It was common ground that the claim (and in consequence the two appeals before me) arose under the common law of negligence. An early suggestion that the Occupiers' Liability Act 1957 had some relevance was not pressed. It was also common ground that Bosworth and J's parents owed SSR a duty of care, which could be broadly stated to be a duty to take reasonable steps to keep SSR (and indeed the other boys) safe from harm. It was agreed that the precise content of the duty in terms of what steps needed to be taken might differ as between Bosworth and J's parents; determining what was reasonable for each of them depended on the circumstances generally, and the nature of their relationship with SSR specifically. I accept these propositions and do not elaborate on them.
39. My attention was drawn to Harris v Perry [2008] EWCA Civ 907 (to which the Judge had referred), a case involving a Claimant aged 12 who had sustained very serious injuries when playing on a bouncy castle being supervised by the Defendants. The Court (by Lord Phillips, LCJ) said this at [34]:

"Children play by themselves or with other children in a wide variety of circumstances. There is a dearth of case precedent that deals with the duty of care owed by parents to their own or other children when they are playing together. It is impossible to preclude all risk that, when playing together, children may injure themselves or each other, and minor injuries must be commonplace. It is quite impractical for parents to keep children under constant surveillance or even supervision and it would not be in the public interest for the law to impose a duty upon them to do so. Some circumstances or activities may, however, involve an unacceptable risk to children unless they are subject to supervision, or even constant surveillance. Adults who expose children to such circumstances or activities are likely to be held responsible for ensuring that they are subject to such supervision or surveillance as they know, or ought to know, is necessary to restrict the risk to an acceptable level."

The Court allowed the Defendants' appeal with the result that the Claimant did not recover damages for his injuries, which were held to have resulted from an accident for which no one could be held liable.

Bosworth's Appeal

40. Mr Payne appears for Bosworth. In commendably succinct submissions (written and oral) he advanced his case that the Judge was in error, on one of four grounds: (1) that the Court erred in finding causation established; (2) that the Court imposed a standard of care which was too high; (3) that the Court erred in relation to the element of foreseeability of the risk of serious harm; and (4) the Court erred in finding that there was a duty to warn participants not to swing their clubs.
41. The focus of his argument was on grounds (2) and (4) taken together. He submitted that the Judge's simple rule, as she formulated it at paragraph [69] of the judgment, imposed too high a duty on Bosworth. That would amount to Bosworth having to police the behaviour of users of the crazy golf course, which was beyond what was reasonable; by analogy with Harris v Perry, this was to impose too high a standard of care on Bosworth.
42. Alternatively, Mr Payne argues that the risks involved in this case – against which the Judge concluded Bosworth should have warned users of the course – were so obvious that no warning reasonably was required.
43. In the second alternative, Mr Payne argued that if the Judge was right to conclude that Bosworth had breached its duty owed of care to SSR by its failure to warn, then so surely had J's parents been in breach of their duty, given that they had specific and direct responsibility for the safety of the boys that day. They too should have warned the boys about the danger of swinging the putters; they should have policed the boys' behaviour; they should have provided closer supervision. This was particularly so in light of the Judge's finding that J needed firm handling, which was known to his parents but not known to or knowable by Bosworth.
44. In response, Mr Hunter essentially sought to uphold the findings of the Judge on this point. He noted that none of the facts found are challenged by Bosworth. He submitted that the Judge's conclusions were open to her on the evidence and her findings of fact based on that evidence.
45. I agree with Mr Hunter. I can discern no error of law in the Judge's approach or findings. It is accepted that Bosworth owed SSR a duty of care. The duty was to take reasonable steps to keep SSR safe. The Judge cannot be faulted for finding that Bosworth was in breach of that duty of care in failing to carry out a risk assessment. Such an assessment is a basic safety requirement for a business such as that run by Bosworth. Before the public were invited onto the premises to enjoy the facilities on offer, Bosworth should have undertaken a risk assessment to identify any risks to the public and take appropriate and reasonable action to mitigate those risks. That was not done. Bosworth was in breach of its duty of care owed to SSR.
46. That is not to impose too high a standard on Bosworth; far from it. It is to require Bosworth to take ordinary and basic steps to avoid foreseeable risks. I reject ground (2).
47. The Judge concluded that the accident occurred for lack of a notice warning participants not to swing their clubs, this being the substance of the "simple rule" the Judge referred to at [69]. This conclusion can be justified in one of two ways. Either it could be said that Bosworth should have had such a rule in place in order to meet its duty of care to its customers and that failure to have such a notice was a breach of that duty; or it could be said that as a matter of fact, if Bosworth had carried out a risk assessment, as it ought to have done, it would have appreciated the risk to its customers from misuse of golf clubs and would have posted a warning in terms of the simple rule to mitigate that risk.
48. The outcome is the same whichever route is taken. A warning notice should, surely, have been posted to instruct visitors how to play safely, as the minimum measure required to minimise the risk of injury by misuse of clubs. That is not to impose too high a standard on Bosworth. Such a notice would cost very little and is the sort of measure that is commonly seen in this sort of recreational outlet. It would not have a chilling effect on the availability of crazy golf as a desirable activity; it would not discourage people from setting up crazy golf courses. These are all factors which the Judge had in mind pursuant to s 1 of the Compensation Act 2006.
49. Alternatively, as the Judge noted, the risk assessment which was in fact undertaken by Bosworth after this incident revealed a risk of personal injury to participants on the crazy golf course by inappropriate use of golf clubs and Bosworth then did, in fact, post a warning to mitigate that risk. It was reasonable to conclude that if a risk assessment had been undertaken before 14 September 2013, as it should have been, that risk assessment would have revealed the risk of injury due to inappropriate use of clubs, and that risk would have been mitigated by posting a warning on site. Thus, a warning would have been given to J and the Judge's findings on causation flow from that.
50. That deals with Ground (4).
51. Mr Payne then argues that the Judge was fanciful to conclude that J would have read and obeyed such a warning; after all, he argued, J swung his club in frustration when he could not get the ball in the hole, and that impetuous behaviour would not have been prevented by having a notice in the shop setting out the simple rule. This was ground (1). There are two answers to that submission. First, this is a challenge to the Judge's findings of fact, set out at paragraphs [99] and [102]. The Judge found, as a fact, that if J had been given clear instructions and warning (about the danger of raising his club) he would not have behaved in the way that he did. Bosworth's Grounds of Appeal do not contain any challenge to the Judge's findings of fact and this argument is in consequence not open to it. Secondly, and in any event, the Judge had evidence before her to support this finding. That evidence was provided by J's sports coaches (summarised at paragraph [68] of the judgment) to the effect that J was amenable to firm instructions in the sporting context, and if he had been told not to swing the club he would not have done so. The Judge was entitled to conclude that J would have observed the "simple rule" printed on any notice which was posted by Bosworth and in that way the accident would have been averted: see again [99] and [102]. Ground (1) fails.
52. I also reject the proposition that serious harm was not reasonably foreseeable (Ground (3)). It was foreseeable that the users of the crazy golf course would include children and it is foreseeable, even obvious, that if children are given metal putters to play with, they might cause serious injury to themselves or other users by inappropriate use of that equipment. Taking a swing with a club, when there are other players in close proximity, carries with it the plain possibility that damage, if caused, may be serious.
53. While accepting that the risk of harm was obvious, I reject the proposition that it was so obvious that it did not need to be the subject of mitigating measures. This was a recreational activity aimed at children. Children lack the insight of adults into what is or may be a risky activity. Children on Bosworth's crazy golf course needed to be told how they should keep safe and they needed to be told not to raise their clubs above a certain level.
54. Bosworth's argument that J's parents should share liability for the accident is better addressed separately below; it would not anyway provide a basis for allowing Bosworth's appeal, rather it would mean that J's parents shared liability with Bosworth. (Mr Payne told me that there were contribution proceedings in existence, brought by Bosworth against the parents; I have not seen the relevant documents and for today's purposes I do not need to.)
55. I dismiss Bosworth's appeal against the Judge's finding that it was liable to the Claimant.

The Claimant's appeal

56. SSR appeals against the Judge's dismissal of his case against J's parents. Bosworth supports SSR's appeal. The essence of the claim is that J's parents had primary responsibility for supervising J and his friends. Bosworth supports that proposition with the additional argument that if Bosworth is to be held liable to SSR for a failure to warn or supervise, then so surely must J's parents be liable for such a failure. J's parents, by Mr Lewers, seek to uphold the Judge's decision that they are not liable, for the reasons given by the Judge.
57. In this appeal, I start with the Judge's causation findings. She found that J would have abided by any instruction he was given not to swing his club above a safe height (knee or hip). Further, the evidence records that he had swung his club on one occasion prior to the (second) swing which caused the accident, so the fateful swing was not a one-off. I infer from these conclusions that J had not been told he should not swing his club and did not know the simple rule.
58. We know that Bosworth failed to deliver that instruction. That is the crux of the liability finding against it. But it also follows that no such instruction was given by J's mother. Quite apart from the inference which I draw to that effect from the Judge's findings of fact (see the preceding paragraph), I note the terms of J's mother's witness statement as follows:

"I asked all of the boys whether they had played crazy golf before and they all assured me that they had and said they knew what to do. I reminded them to keep clear of the putting area and keep their distance whilst each player took their turn. There had been another crazy golf party previously that all the boys had attended."

The reason for telling them to "keep their distance" may have been related to the danger of being too close if a club was raised above putting height. But they were not told in terms not to swing their clubs.

59. The Judge held that some instruction was given by J's mother but that it was not possible to say on balance of probability what precisely was involved (see [72]). In this way, the Judge resolved the conflict of evidence between J's mother, on the one hand, and BP and SM on the other, both of whom said that they were given no briefing or instructions at all by J's mother. Although the Judge found each of BP and SM to be credible witnesses, she rejected their evidence on this point. (SSR had said in evidence that he could not remember whether J's mother gave him any instructions or not.)
60. Although the full content of the briefing may not have been established on the evidence, this much at least is clear from the Judge's other conclusions and from J's mother's evidence: that J's mother did not tell the boys not to swing their clubs. Mr Lewers accepts the accuracy of that conclusion on the evidence. He had never argued otherwise.
61. The narrow issue on which this appeal therefore turns, it seems to me, is whether J's mother, in failing to give that instruction, was in breach of her duty of care owed to SSR (and the other boys).
62. Before resolving that issue, it is necessary to examine in closer detail the context in which it arises. First of all, the nature of this event put J's mother in charge of four boys aged 9 and 10. This was J's birthday party and the boys were doubtless in good spirits. Each boy had been given a metal putter for the crazy golf. They had been given no instruction at all by Bosworth. J's mother knew that.
63. Secondly, the issue does not arise in isolation. It needs to be considered in the overall context of the arrangements made by J's parents to look after the boys. So, if J's mother had been planning to go round the crazy golf course with the boys, she would have been on hand if there was any misbehaviour and it might have been reasonable for her to adopt a "light touch" in relation to safety instructions; if, however, she was planning to supervise from a distance (or not at all), then it was reasonable to expect her to give more detailed instructions about safety issues because she would not be able to intervene immediately if there was a problem. In fact, as we know, J's mother was standing outside the perimeter of the course, somewhere "nearby" (the exact location is not ascertained), and was not with the boys on the course; we also know that her attention was not constant, because she missed her son swinging his club on the two occasions when he did it. The Judge said in terms that close supervision was not required and I respect that conclusion. But if J's mother was not going to accompany the boys on the course and thereby offer close supervision, the need for clear safety instructions became more pressing.
64. Thirdly, J required firm handling because he could be boisterous and impetuous. His mother knew this.
65. In those circumstances and set in that context, I conclude that it was reasonable to expect J's mother to give a firm and clear instruction to J that he should not swing his club. I do not need to decide whether other measures beyond this were necessary, because that instruction alone would have prevented this injury. This was the very minimum which was required.
66. The Judge concluded, after giving "anxious consideration" to the question, that "there was a level of supervision and instruction" by J's parents (at [100]), but she did not say in terms whether she thought that level of supervision and instruction was sufficient, even though that was the critical question. But she dismissed SSR's claim against J's mother, from which I infer that she thought that it was sufficient.
67. I cannot reconcile that conclusion with the Judge's own findings of fact and reasoning based on her findings. She had found that it was appropriate that the boys should have clear instructions on how to behave and how to use the putters ([55]). She concluded that Bosworth was responsible for its failure to give those instructions. She found that J was a boy who had character traits which meant he required firm handling. She found that J would not have swung his club if he had been told not to. All this is accepted. But this leads me to conclude that the failure to provide firm handling, in the form of a clear instruction to J, was a negligent failure by J's mother which put her in breach of her duty of care which caused the injury to SSR.
68. As the Judge found, such an instruction would have been sufficient to avert this accident: see [99] and [102].
69. I allow SSR's appeal against J's mother.
70. There is no case brought against J's father, who is named but was not in the vicinity at the time of these events because he had gone to the car, parked a little distance away. He had delegated his responsibility to look after the children to J's mother.

Conclusion

71. I dismiss Bosworth's appeal. I allow SSR's appeal.
72. I thank all counsel involved for their helpful submissions.
73. I invite the parties to seek agreement on consequential issues, failing which I will resolve them on paper or, if I am asked to, at a further hearing.