| NEGLIGENCE — Duty of care to whom? — Supervision of children playing — Parents hiring bouncy castle for children’s party — Mother supervising play but briefly turning away — Child severely injured by another child doing somersault — Whether duty of care breached — Whether uninterrupted supervision required
Harris v Perry and another [2008] EWCA Civ 907; [2008] WLR (D) 278
CA: Lord Phillips of Worth Matravers CJ, May and Wilson LJJ: 31 July 2008
It was not reasonably foreseeable that boisterous play on a bouncy castle would involve a significant risk of serious harm and, therefore, parents who hired a bouncy castle for a children’s party did not have a duty of care to keep the children playing on it under uninterrupted supervision.
The Court of Appeal so held in allowing an appeal by the defendants, Timothy Perry and Catherine Perry, against the decision of David Steel J in the Queen’s Bench Division on 8 May 2008 that they were liable to the claimant, Samuel Harris, for serious injuries suffered when, aged 11, he was struck by another child on a bouncy castle hired by the defendants for a children’s party.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the second defendant was supervising children on the bouncy castle but the accident occurred when her back was turned because she had gone to help another child. Three children each did a somersault–the last accidentally caused the claimant’s injuries. The judge held that the second defendant’s duty of care to the claimant required her to maintain “uninterrupted supervision” of the bouncy castle and that, if she had so acted, she would have been able to stop the somersaults in time to prevent the accident and thus that her breach caused the accident. There was a dearth of case precedent that dealt with the duty of care owed by parents to their own or other children when they were playing together. It was impossible to preclude all risk that, when playing together, children might injure themselves or each other, and minor injuries must be commonplace. It was 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 might, however, involve an unacceptable risk to children unless they were subject to supervision, or even constant surveillance. Adults who exposed children to such circumstances or activities were likely to be held responsible for ensuring that they were subject to such supervision or surveillance as they knew, or ought to know, was necessary to restrict the risk to an acceptable level. In considering the precautions that should reasonably have been taken in relation to the bouncy castle the judge had regard to two documents, a health and safety information sheet found on the hire company’s website and the British Inflatable Hirers Association standard conditions of hire. Those documents were not seen, nor should have been seen, by the defendants and the judge should not have attached significance to them. What he should have done was to identify the standard of care required in the circumstances on the basis of the facts of which the defendants knew or ought to have known. The issue was what positive steps would a reasonable parent take for the safety of a child of the claimant’s age playing on a bouncy castle. The answer must depend critically on the risks that the reasonable parent ought to foresee would be involved in the use of the bouncy castle. The injury suffered by the claimant was of horrifying severity. The hire agreement recommended that the equipment should be supervised at all times and that boisterous behaviour should be stopped. A reasonable parent could foresee that if children indulged in boisterous behaviour on a bouncy castle there would be a risk that, sooner or later, one child might collide with another and cause that child some physical injury of a type that could be an incident of some contact sports. It was not reasonably foreseeable that such injury would be likely to be serious, let alone as severe as the claimant’s injury. The standard of care that was called for on the part of the defendants was that appropriate to protect children against a foreseeable risk of physical harm that fell short of serious injury. On that basis, there could be no justification for holding that the duty of care required that children who were playing on a bouncy castle must be kept under constant surveillance. The impression given in the hire agreement was that a responsible adult should be in the vicinity of the castle to intervene if those playing on it got boisterous, but not that the supervisor had to be watching them continuously to ensure that their behaviour never became boisterous. That accorded with the conclusion as to the requirement of reasonable care that would be drawn by a parent in the absence of any express recommendation. The judge imposed an unreasonably high standard of care. The second defendant acted reasonably. She could not reasonably have foreseen that, in turning to help another child, she would expose the children playing on the bouncy castle to an unacceptable risk. The accident was a freak and tragic accident. It occurred without fault.
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