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BOUNCY CASTLE RULING SIGNALS BACKLASH AGAINST THE COMPENSATION CULTURE?
What the papers say: Judge bans brain-damaged boy from suing over bouncy castle accident. A victory for those supervising bouncy castles who had been left open to compensation claims by parents over even minor accidents. Daily Mail 01.08.08. Lets just hope it’s the beginning. The immoral compensation industry, and the parasites who make money from it, are ruining this society. Mail on Line comments page 01.08.08. Because of all this compensation culture…. 100s of child’s play and social events are being stopped because the insurance fees are too high or the insurers just will not cover them…. Mail on Line comments 01.08.08. What the PM said: Tony Blair attacked the “compensation culture” back in May 2005 saying something is seriously awry when teachers feel unable to take children on school trips, for fear of being sued:… where health and safety rules across a range of areas is taken to extremes. As a result public bodies, in fear of litigation, act in highly risk-averse and peculiar ways. He spoke of local authorities removing hanging baskets for fear they might fall on someone’s head and a seesaw being removed from a village playground, which was said not to comply with an EU directive on playground equipment for outdoor use. Care workers were not allowed to help an elderly client get up after a fall so basic human acts of care like this are being prevented by intrusive regulations. Since then the

Compensation Bill has become law and requires Judges to think twice before imposing legal liability where an accident arises out of a “desirable activity”. A backlash or just a trend?:So is the “bouncy castle ruling” the beginning of a backlash against the compensation culture? We would not go as far as to say “backlash”, but there does seem to have been something of a hardening of attitudes against “compensation culture” type claims over several years. For example in Tomlinson -v- Congleton BC (2003) the Claimant broke his neck diving into shallow water. The Law Lords ruled against him with Lord Scott commenting memorably why should the council be discouraged by the law of tort from providing facilities for young men…. to enjoy themselves…. Of course there are some accidents arising out of the joie de vivre of the young. That is no reason for imposing a grey and dull safety regime on everyone. Claims involving trespassers coming to grief attempting jumps on motorcycles, swinging from fire escapes and taking late night shortcuts have also been dismissed, on the basis the resulting accidents were more to do with the Claimant’s risk-taking activities than the state of the land or buildings concerned. Perhaps with Lord Scott’s words in mind Mr Justice Stanley Burnton confirmed in 2005 that a council was not in breach of its duties to the public at large under the Health & Safety at Work Act 1974 by allowing out of hours swimming in the bathing ponds of Hampstead Heath. In 2007 Cole -vDavis-Gilbert the Claimant broke her leg after stepping into an exposed hole on a village green. She brought her claim against a number of organisations associated with the village fete, as the hole had been dug to accommodate a maypole. The claim failed apparently on the ground that no-one could prove exactly who was responsible for removing the wooden seal from within the hole. However, comments were also made to the effect it was dangerous to set too high a standard of care as that would discourage traditional activities on village greens. The bouncy castle case:So to the recent ruling against the family of 13 year old Sam Harris (Perry -v- Harris Court of Appeal 31/07/08) who suffered a fractured skull and permanent brain damage when another boy somersaulted on a bouncy castle accidentally striking Sam’s forehead with the heel of his bare foot. Lord Philips (giving the leading judgment of the Court of Appeal) said the injury will have severe, permanent cognitive behavioural, emotional and social consequences for him. It is

impossible not to be deeply moved by the plight of the Claimant, of his mother (divorced from his father) who struggles to care for him, and of his sister. Sam’s mother claimed compensation on behalf of her brain damaged son. Few would criticise her for that , taking into account the couple who had hired the bouncy castle (Mr & Mrs Perry) had liability insurance after all, that is what insurance is for. There might have been more of a moral dilemma if the Perrys had no insurance, because bringing the claim would have brought financial ruin upon them. Whatever the moral rights and wrongs, Mrs Harris’ decision to sue was vindicated when the claim succeeded before a High Court Judge. However, there was nearly a sting in the tail, as the clever insurers for Mr and Mrs Perry brought Sam’s father into the case, on this basis he could have prevented Sam accessing the bouncy castle and/or kept a closer eye on him when he was using it. Bringing the Claimant’s Father into the claim: Although the claim against his father failed, there was, something unusual about Sam which might have lent support to the claim against his father, namely that he had Asperger’s syndrome. It was said Sam’s father was under a greater duty to supervise him than if he had been a “normal” child. This interesting angle was not explored as closely as it might have been since medical experts only met to discuss the implications on the second day of the trial (something which should have happened months earlier). Nevertheless, the claim against Sam’s father was roundly dismissed on the basis a parent is not to be criticised for permitting his child to play on an apparently supervised and troublefree bouncy castle. He probably had no insurance and no doubt the Judge viewed the prospect of diverting the claim from the Perrys’ insurers onto him with some distaste. In contrast, the main claim against the Perrys succeeded in full. A cynic might say that the Judge simply tailored his reasoning to ensure that the claim succeeded against an insured defendant. However, from a legal point of view, it is not that surprising that Sam’s claim succeeded against the Perrys. They admitted they had invited Sam to join in. It was unanimously accepted by all parties that from that point onwards, they owed Sam a duty of care. The only question was the extent of that duty. The extent of the Perrys’ duty - in the lower Court: One issue very relevant to the extent of the duty was not really discussed in the judgment, namely the Perrys had set up their inflatables on public land adjacent to, but not within their garden. Children (such as Sam)

were joining in activities on the bouncy castle after football practice on the playing field without having been specifically invited or expected to attend the party. Surely a person who sets up inflatables on a playing field - where they would be a magnet for children - must take on a higher degree of responsibility than a person providing the same piece of equipment to an invited guest on their own private land? If you add that to the inevitable sympathies of the Court towards the Claimant and that the Defendant was insured, the finding of liability against the Perrys was not so surprising. However the Judge seemed to go somewhat out of his way to find the Perrys had failed their duty by quoting extensively from terms and conditions used in the “inflatable apparatus” hire industry, which the Perrys had never actually seen. That was probably unfair and the Perrys appealed. The extent of their duty – on appeal: On the Perrys’ appeal the Chief Judge, Lord Phillips, ruled in the context of this case, the issue was what positive steps would a reasonable parent take for the safety of the child of the Claimant’s age [11] playing on a bouncy castle? The answer to this question must depend …. on the risks that the reasonable parent ought to foresee being involved in the use of the castle. In other words, a reasonable parent should ask himself the question within reason what could possibly go wrong? Lord Phillips gave guidance on what reasonable parent might foresee could go wrong. He suggested 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 can be an incident of some contact sports. He had in mind cuts and bruises, maybe minor soft-tissue injuries and breakages. However, in his view it was not foreseeable such an injury would be serious let alone as severe as the injury sustained by the Claimant. In reaching this conclusion, he took into account nothing as serious as this was known to have happened before. He concluded the standard of care ….. was that appropriate to protect children against a foreseeable risk of physical harm that fell short of serious injury. In practice that meant:-

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stopping boisterous behaviour. That was as distinct from preventing boisterous behaviour occurring in the first place, which would involve intensive supervision and a high level of intervention. That would be an unreasonably high standard. it would not necessarily be negligent to allow

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children to perform somersaults one at a time. it is not necessarily negligent to mix children of different sizes, taking into account the bouncy castle in question was designed to accommodate adults.

The claim was dismissed as a freak accident which was nobody’s fault. However, the reasoning of the Court may store up problems for the future. The Court has said that serious injuries are to be regarded as unforeseeable. What then of less serious injuries? If a child sustains a non-serious injury (such as a broken arm) as a result of somersaulting or assorted sizes of children playing on a bouncy castle, it would be difficult to describe that injury as unforeseeable. Logically, there ought to be liability for foreseeable injuries. Do we therefore have a situation where serious injuries will give rise to liability, but non-serious injuries (whatever that means) will not? What is certain is that the Appeal Court has shown its distaste for “compensation culture” claims and it will be a brave solicitor or litigation insurer who backs the next “bouncy castle” claim. Footnotes:The new Act has been denounced as “legislative spin” (SJ 21/07/06 ) on the basis Judges already have some discretion over when (or when not) to impose a legal duty of care in a given situation. We would not wholly subscribe to this criticism, as the situations in which a Court will refuse to impose a legal duty of care are fairly limited, for example concerning operational decisions by the emergency services. However, we would agree the Act is rather woolly as it says the Court may not must take into account the desirability of the injurious activity. Recently in Hall v Holker Estate Co Limited (2008) the Court of Appeal found for the Claimant after a five a side goal post on a holiday park fell forward, injuring his jaw. Persons unknown had removed the pegs which should have been in place to hold the posts to the ground. The Court accepted a safety inspector’s evidence that these needed to be checked on a daily basis and that – on the balance of probabilities – that had probably not occurred. An underlying distinction between this case and Cole and Perry might be that the holiday park was a commercial provider not a volunteer.

Brachers | Tel 01622 690691 | Medway House, 81 London Road, Maidstone, Kent. ME16 0DU


								
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