United Kingdom Journals

Negligent children

Dr David Wenham BSc, MSc, PhD, DipSH, MIOSH

Lecturer in Occupational Health and Safety Management
Centre for Hazard and Risk Management
Loughborough University
<D.G.Wenham@lboro.ac.uk>

Copyright © 1998 David Wenham.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The decision of the Court of Appeal in Mullin v Richards [1998] 1 All ER 920, has confirmed that to prove if a child has been negligent, the objective standard of what a child might be reasonably expected to foresee is that of an ordinarily prudent and reasonable child of that age rather than that of a `reasonable man'. This follows the decision of the Australian High Court in McHale v Watson (1966) 115 C LR 199 in respect of what a child might reasonably be expected to foresee and Gough v Thorne [1966] 3 All ER 398, in respect of contributory negligence. It also affirms that teachers are expected to behave as reasonable parents with the consequence that they cannot be expected, even with young children, to supervise their behaviour constantly.

Contents

The Facts and the Decision
Discussion

The `reasonable child'
Foreseeable harm by a child

Conclusions

The Facts and the Decision

On 29 February 1988, two 15 year old schoolgirls were in a mathematics lesson that was coming to an end, when the girls engaged in a play sword fight using plastic 30cm rulers. Unfortunately, one of the rulers snapped and a fragment of plastic entered the right eye of the plaintiff resulting in the virtual loss of sight in that eye. The plaintiff sued both the education authority and the defendant schoolgirl alleging negligence in both cases. The County Court action against the local authority was dismissed, holding that the teacher whose class was coming to an end had not been negligent due to a lack of proper supervision. The Court, however, found that both girls had been negligent by participating in an event of horseplay which in its latter stages was becoming dangerous due to the rulers being used with some violence. The Court also held that both girls must have appreciated that the horseplay was dangerous and that physical injury was therefore readily foreseeable although the precise injury may not have been foreseen. The court therefore found in favour of the plaintiff and awarded her £27,500, but this was reduced by 50% due to her contributory negligence.

The defendant subsequently appealed to the Court of Appeal which concluded that neither girl could have reasonably foreseen the outcome of the play fencing and so the appeal succeeded and the action failed.

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Discussion

The usual course of events following an assertion of negligence by a pupil in a school is for the injured person to sue the school or controlling local authority alleging a lack of reasonable supervision or a lack of adherence to reasonable safety precautions. Whilst the child is at school each teacher acts in loco parentis and is expected to adopt the standards which would be expected of a reasonable caring parent. This does not expect the behaviour of the teachers to be exemplary in foreseeing and taking precautions against all hazardous situations. In Carmarthenshire County Council v Lewis [1955] 1 All ER 565, the House of Lords held that a teacher was not negligent in leaving two four-year old children unattended for ten minutes whilst she gave first aid to another child. In Mullin v Richards the County Court was satisfied that the action of the school and the teacher were not negligent and so the action against the school was dismissed. This left the plaintiff with the action against the other pupil who had allegedly caused her harm by negligent action.

The key issues in the appeal by the defendant were, to what extent the age of the defendant should be taken into account in establishing negligence and to what extent was the harm foreseeable?

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The `reasonable child'

Until this case there has been no precedent set in English law as to whether the accepted standard of behaviour of a child should be according to the judgment of Alderson B in Blyth v Birmingham Waterworks Co (1856) 11 Ex 781,784 , namely that of the `reasonable man', or whether it should be of some lesser standard. To answer this Hutchinson LJ referred to the Australian High Court decision in McHale v Watson (1966) 115 CLR 199. In this case a twelve year old boy had acquired a piece of welding rod about 6 inches in length. One end had been sharpened by the boy so that the rod could be used to spear objects (such as catching fish). The boy was playing with other children and threw the rod as though it were a dart (without a flight) at a wooden post. The rod hit the post, but it bounced off and struck the plaintiff in her left eye resulting in blindness. In his judgment Kitto J stated at p 213:

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.

Owen J in the same case quoted approvingly from par. 283 of the American Restatement of the Law of Torts which states that:

...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.

On the basis of the evidence presented the behaviour of the boy was the unpremeditated, impulsive act of a boy not yet of an age to have an adult's realisation of the danger of a sharp tool or an adult's wariness in the handling of them. It would have been unreasonable to expect the boy to consider before throwing the rod whether the timber was hard or soft, or to weigh up the chances of being able to make the spike stick in the post, and then to foresee that it might bounce off and hit another child standing nearby. Accordingly it was held (by a majority decision) that if the standard to be expected was that of an average 12 year old, the boy had not been negligent.

Hutchinson LJ also referred to Gough v Thorne [1966] 3 All ER 398. In this case a 13½ year old girl (the plaintiff) was waiting on the pavement to cross a main road. A lorry approached, stopped and the driver held out his right hand to warn traffic coming along to stop and with his left hand beckoned the plaintiff to cross. Just as she passed the front of the lorry she was struck and injured by a car being driven at excessive speed as it overtook the lorry. The car driver had failed to see the lorry driver's outstretched hand. At first instance the car driver was held to have been negligent but the plaintiff was also held to have been negligent in moving past the front of the lorry into the open road without pausing to establish whether there was any approaching traffic and her damages were reduced by one third.

The plaintiff then appealed against the reduction in damages to the Court of Appeal.

Salmon LJ in his judgment stated at p 440:

The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13½ could be expected to have done any more that 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 13½, seeing the lorry stop to let her cross and the lorry driver, a grown-up person in whom she no doubt has some confidence, beckoning her to cross the road would naturally go straight on, no one in my view could blame her from doing so. I agree that if she had been a great deal older and hardened by experience and perhaps consequently with less confidence in adults, she might have said to herself.

`I wonder if that man has given the proper signal to traffic coming up? I wonder if the traffic has heeded it? I wonder if he ought to have beckoned me across when he did and whether he looked behind him before doing so?'

She might have not gone past the front of the lorry without verifying for herself that it was safe to do so; but it would be quite wrong to hold that a child of 13½ is negligent before she fails to go through those mental processes and relies unquestioningly on the lorry driver's signal.

The appeal was accordingly upheld.

Hutchinson LJ explicitly approved of the approach taken in both McHale v Watson and Gough v Thorne as the standard by which the behaviour of a child should be judged.

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Foreseeable harm by a child

Apart from the objective assessment of the standard of care that would be expected of a child, a further crucial element is to establish if the harm sustained is foreseeable. A defendant will not be liable if the injury sustained is not of the kind that the defendant ought to have foreseen as the likely outcome of his or her lack of care.

Accordingly in Mullin v Richards, it was necessary to establish whether a reasonable 15 year old schoolgirl would have appreciated that by participating in a play fight, involving the use of plastic rulers, this would give rise to a significant risk of injury to the plaintiff through the fracturing of the ruler and the entry of a fragment of plastic into the eye. Reference was made to the House of Lords decision in Bolton v Stone [1951] 1 All ER 1078. In this famous case a cricket ball was struck by a player during a cricket match and the ball travelled right out of the ground and struck a passer-by who happened to be walking on a footpath which was next to the ground.

The key issue concerned the foreseeability of a ball being struck out of the ground and hitting a pedestrian. Evidence was presented that balls had been struck out of the ground on six occasions in thirty years.

Lord Porter stated at p 1080 -

The question however 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? ... 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.

Therefore the House of Lords held that in the circumstances the likelihood of injury by a cricket ball was so small that it would not be anticipated by a reasonable man.

In Mullin v Richards no evidence was produced that ruler fencing was banned or discouraged and there was no evidence of a ruler breaking under such circumstances and that anybody had suffered injury. In fact ruler fencing was common place in the school and neither girl had ever received any warning of the danger. Furthermore there was no evidence as to why the ruler broke. Hutchinson LJ explicitly rejected the inference that there was `excessive violence or inappropriate violence over and above that which was inherent in the play fencing in which these two girls were indulging.' Their activity was nothing more than a schoolgirls' game which was commonplace in the school. Hutchinson LJ therefore concluded that neither girl could have reasonably foreseen the outcome of the play fencing and so the appeal succeeded and the action for damages failed.

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Conclusions

An incident in a school which causes personal harm may lead to a civil action for negligence. In this tort there is no defence of infancy as such, and a child is liable to be sued accordingly. The recent decision in Mullin v Richards confirms that a child's behaviour, whether as plaintiff (for the purposes of an allegation of contributory negligence) or defendant (for the purposes of an allegation of negligence), should be judged objectively according to the standard of an ordinary prudent and reasonable child of that age. The decision also stands as a reminder that the question of the child's objective foresight of the risk of harm in such a case must be judged against the evidential background concerning the extent to which the magnitude of the risk would have been appreciated by a child of such an age. It also affirms that teachers are expected to behave as reasonable parents with the consequence that they cannot be expected even with young children to constantly supervise their behaviour.