Social Desirability and Negligence

“I have to confess that I have found it uncommonly difficult to reach a confident judgment in this case.  Here was a big strong thirteen year old lad, well-used to rough and tumble, playing rugby with distinction for his county, ever ready to take the bumps and the bruises, ever willingly to put his body on the line for the thrill of his sport…So, is awarding him damages for an injury suffered playing the game, “Objects in the Dark”, not an example … of a decision which emasculates those responsible for caring for our children and in so doing, enfeebles the children themselves?  Where do you draw the line?  I have found that hard to answer.”

So said a distinguished judge of the Court of Appeal recently in finding a Scout Association liable in negligence for an unfortunate injury that one of its members had suffered. The decision, an important one for many reasons, is reported as Scout Association v Barnes, and is available here.

Mark Barnes, at the time thirteen years old, was by all accounts keenly involved in the activities of the Scout Association, and, in February 2001, participated in a variant of a game known as “Grab”. The game, played by one more boy than the number of “blocks”, required the boys to grab one block each, with each round eliminating the unsuccessful candidate. The variant, called “Objects in the Dark”, was played without illumination in order to, as the scout leader testified in court, add to the “excitement”. Unfortunately, on the day in question, Mr. Barnes collided with a wall and suffered serious, albeit not long-term injury. Subsequently, a claim was brought against the Association for negligence.

It is well known that the law of negligence does not automatically compensate any injury that a claimant sustains, even if there was a significant risk of such injury. Indeed, the presumption, if anything, is to the contrary in such cases, because it is not the function of the law of negligence to eliminate even socially undesirable activities, let alone legitimate ones voluntarily undertaken. Instead, negligence law simply requires compensation from persons who commit acts although it is reasonably foreseeable at the time of commission that such acts are likely to cause damage to a third party to whom those persons owe a duty of care. In short, the fulcrum of negligence law is a combination of knowledge and foreseeability in relation to a defendant and his “neighbour”. In its application to injuries arising out of or in connection with sport, the classic statement of principle expressed by Diplock LJ in 1963 was that even a spectator’s claim fails unless the sportsman’s conduct was “such as to evince a reckless disregard of the spectator’s safety.” Again, the influence of knowledge and risk in the formulation of this test is apparent. On an imperfect analogy with sport, it might follow from this that Mr. Barnes’ claim had to fail. Yet, the trial judge allowed it, and awarded damages of about £7,000. The Scout Association, fearing the consequences of that decision and a possible deluge of claims, appealed.

The Court of Appeal dismissed the appeal over a strong dissent by Jackson LJ. Jackson LJ’s dissent, interestingly, did not replicate the knowledge and risk analysis – his Lordship accepted that playing the game without illumination materially increased the risk of injury, but referred to an important principle of the law of negligence that no less an authority than Lord Hoffmann had explained (by way of analogy) in Tomlinson v Congleton. In that case, the claimant had suffered injury by diving into a lake. Reversing an award of damages, Lord Hoffmann had observed that:

the question of what amounts to “such care as in all the circumstances of the case is reasonable” depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measure. These factors have to be balanced against each other [emphasis mine].”

Jackson LJ was of the view that the trial judge had applied the ingredients of negligence without considering the social value of the activity and the cost of preventative measure – an assessment that drew support from the fact that the judge had allowed the claim “with regret”. Jackson LJ held that risk in many fields is accepted, such as cricket, rugby and skiing, “because recreations of this nature have a social value.” This is an interesting basis on which to rest the law’s traditionally hands-off approach to negligence in sport, because the more conventional common law view, highlighted above, is that a claim in those circumstances fails simply as a consequence of the knowledge of the claimant that he, by participating in that game, ran a risk of such injury.

The majority – Smith and Ward LJJ – in fact agreed with much of this substantive analysis. Smith LJ held, however, that the judge had taken into account the principle in Tomlinson, and had concluded that the extent of the social benefit of the activities of the Scout Association was insufficient to offset the particular risk. While this is not apparent from the judgment at first instance, and while it is possible to take a different view on the merits of the application of Tomlinson even if it is apparent, Smith LJ found that an appellate court could not do so, since it is not an error of law. This reasoning is a good example of the deference that English appellate courts give to a finding of fact or an exercise of discretion of a judge at first instance. Indeed, save perverse findings of fact, it is perhaps only when the issue is a question of law – which in Jackson LJ’s view it was – that the Court of Appeal examines the question de novo.  As Smith LJ put it,  “[i]t is trite law that this court will not interfere with an evaluative judgment made by the judge below unless he has taken an irrelevant matter into account, omitted to take a relevant matter into account or has reached a conclusion which is plainly wrong [emphasis mine].” Ward LJ came to almost exactly the same conclusion, and agreed with Jackson LJ’s view of the law, finding, however, that the appellate court was not entitled to substitute its view of the question for the view of the trial judge.

This case is a good reminder that the traditional “neighbourhood” principle articulated in Donoghue v Stevenson, on which the modern law of negligence has been built, is suitable for the vast majority of cases, but does raise some difficult questions in others. The classic examples of that category are economic loss and nervous shock, where one of the premises of the neighbourhood principle – foreseeability of the type and extent of damage – is falsified by the nature of the tortious activity. Equally, it may not be appropriate to apply the strict neighbourhood principle to sport, not only because the claimant typically has taken the risk of injury, but also because it may impair the autonomy of sportsmen. Yet, a third class of activities that are plainly socially desirable but cannot be accommodated in the law on negligence in sport raises further questions about the manner in which the negligence test must apply. While Jackson LJ’s approach hints at “social desirability” as the underlying principle across such categories, the last word has not been said on the extent to which it is a freestanding reason to narrow the test for negligence, especially when it is not clear that the claimant has taken the risk of injury.