Perry & Perry v Harris (a minor) [2008] EWCA Civ 907
Perry & Perry v Harris (a minor) [2008] EWCA Civ 907
FactsThe Defendants hired a bouncy castle for their triplets’ tenth birthday party, due to take place on a Saturday afternoon in September 2005. The bouncy castle was pitched on a field adjoining the Defendants’ garden which was open to the public and primarily used for football by the school the triplets attended. The Claimant’s father ran a boys’ football team which was practising on the field on the morning of the Saturday in question. The Claimant, who was eleven, was a member of this team. After he had finished playing football, he and a friend went over to the bouncy castle and, as the judge found, were given permission to play on it by the Defendant Mrs Perry, who was supervising the activity at that time. The party had not yet started, but some other children were playing on the castle, including at least one of the triplets and a friend of theirs called Sam, who was both older and much taller than the others. The Claimant, his friend and Sam started doing somersaults. There came a point when, as the Claimant was getting to his feet after doing a somersault, Sam was mid-somersault, and his heel accidentally struck the Claimant on the forehead. The Claimant suffered a depressed skull fracture and subdural haematoma in the left frontal-parietal lobe. The consequences of the injury were severe and permanent, and the Claimant will require care for the rest of his life. At the moment of impact, the Defendant’s back was turned as she was attending to another child.
First instance decision
At first instance, Mr Justice David Steel held that the Defendants were liable to the Claimant for his injuries. Having found that permission had been given for the boys to play on the castle, it was accepted that the Defendants owed the Claimant a duty of care. Steel J. accepted the Claimant’s case as to the extent of that duty, which was put as follows: (i) to maintain constant supervision, (ii) to prevent children from doing flips or somersaults and (iii) to ensure that only children of a similar size and weight played on the bouncy castle at the same time. In formulating the scope of the duty the judge relied upon the hire document, which the Defendants had seen, and also two further documents available on the hire company’s website, which they had not. On the facts, the judge found that the Defendants had breached each element of the duty and were liable to the Claimant for his injuries.
The Appeal
The Defendants appealed. Lord Phillips gave the judgment of the Court, granting the appeal. It was held that the duty imposed upon the Defendants had been too strict and was unrealistic; it was impossible to preclude all risk that when children played together, they might injure themselves, or each other. The judge had erred in having regard to the documents that the Defendants had not seen, nor ought to have seen. The duty he had imposed upon parents to keep children under constant surveillance was impractical and not in the public interest. The standard of care required was to act as a reasonable provider and supervisor of inflatable equipment for young children, or, which was the same thing, that which a reasonably careful parent would have shown for his or her own children. Some activities involved a greater degree of risk and therefore a greater degree of supervision so as to restrict the risk to an acceptable level, but that would depend on all the circumstances, critically the risks that the reasonable parent ought to foresee would be involved in the activity.
Further, the Defendants’ duty was to protect against a foreseeable risk of physical harm. On the facts of this case, the injury suffered by the Claimant was of horrifying severity. It was not reasonably foreseeable that the collision between Sam’s unshod heel and the Claimant’s forehead would result in a serious injury, let alone one of the severity suffered by the Claimant. There was nothing in the hire document that the Defendants had read to inform them that such a risk existed, if indeed it was a risk that was known to the hire company as a result of previous accidents.
What steps should the Defendants have taken to protect against the risk of foreseeable injury? The hire document that they had seen recommended that the equipment should be supervised at all times and that boisterous behaviour should be stopped. The Court of Appeal interpreted this to mean that ‘a responsible adult should be in the vicinity of the castle to intervene if those playing on it get boisterous, but not that the supervisor has to be watching them continuously to ensure that their behaviour never becomes boisterous.’ In this case, the Defendant had remained in the vicinity of the castle at all times, and could not reasonably have foreseen that in turning to help another child for a short time, she would expose the children playing on the bouncy castle to an unacceptable risk.
The Court of Appeal were not convinced that the reasonably careful parent ought to have concluded that children should not somersault on the castle, but in any event, in the light of the conclusion that it was not necessary to keep constant surveillance on the children, this issue was academic. Whether or not the Defendant could have prevented Sam from performing the somersault that caused injury, the fact is that it occurred during a short period when, without fault, she was concentrating her attention elsewhere.
Finally, their Lordships did not accept that the reasonably careful parent should have prevented children of differing sizes from playing together on the bouncy castle. On all the facts of this case such a duty would have been too high. Sam was well known to the Defendant as a responsible and gentle child. He had been playing on the bouncy castle all morning with younger and smaller children and nothing had happened to alert the Defendants to a potential risk resulting from their different sizes.
Commentary
This case was widely reported in the national press after the first instance decision. The bouncy castle hire industry trembled as it anticipated a massive reduction in bookings. Parents were warned to restrict significantly the kinds of entertainments they provided for their children’s friends at birthday parties, or to be safer still, to stop entertaining their children’s friends at all. Just in case, home-owners rang their insurers to increase the limit of their public liability insurance: if a friend of their child came to visit and sustained injury in their garden on a climbing frame or trampoline, or even from riding a bicycle on the premises, it appeared from the judgment at first instance that they would be liable for the consequences, even if they had kept the children under a relatively high level of supervision. The Defendants in this case were insured, but the limit of their insurance was unlikely to be able to satisfy the eventual award of damages in the case. As a result, they faced losing their home. The Appeal was fast tracked.
The Court of Appeal’s judgment does not lay down any new principle, but goes back to basics and considers all the circumstances of the case: what were the (reasonably foreseeable) risks, and what precautions should the reasonable parent have taken to guard against them. All the facts are to be weighed in the balance, but ultimately, the answer lies in a gut reaction to a set of circumstances, and what should be the reasonable response to them. Like the judge at first instance, nobody could be anything but deeply sympathetic to the plight of the Claimant, and of his family, who now struggle to care for him. However, the Judge at first instance appears to have been swayed too much by their predicament, and perhaps therefore allowed himself to have neglected to consider the facts from the Defendant’s perspective. Yet that is central to the correct approach, which is summarised in the final paragraph of Lord Phillips’s judgment, as follows:
‘...to a large extent a case of this nature properly turns on first impressions. The factual scenario is a simple one and the photographs give a very clear picture of the bouncy castle. ... The issue is whether a reasonably careful parent could have acted in the same way as the defendant. The case does not turn on expert evidence or special knowledge. Essentially we have had to place ourselves in the shoes of the defendant and consider the adequacy of her conduct from that viewpoint and with the knowledge that she had. Each of us had the same reaction to the facts. The defendant could not be held at fault for the way that she acted. The manner in which she was supervising activities on the bouncy castle ... accorded with the demands of reasonable care for the children using [it]. The accident was a freak and tragic accident. It occurred without fault.’
Joanna Vincent
12 King’s Bench Walk