Blake v Galloway: Liability for Horseplay
Blake v Galloway: Liability for Horseplay
Blake v Galloway [2004] EWCA (Civ) 814
Court of Appeal, 16th June 2004
The Vice-Chancellor, Lord Justice Clarke, Lord Justice Dyson
--------------------------------
The claimant was injured in 1997 in the course of some “high-spirited and good natured horseplay” with four of his friends: “just randomly throwing twigs, pieces of bark and mulch in the general direction of each other”. The claimant was struck in the eye by a piece of bark thrown by the defendant. At the time they were all fifteen years old, or thereabouts. He brought his claim in negligence and in battery. At trial, DJ Walker found that the claimant was injured by reason of the defendant’s negligence and battery; he rejected the defence of volenti, but reduced the agreed damages by 50% to reflect contributory negligence. The defendant appealed. Dyson LJ gave judgment for the court.
On appeal, the defendant advanced a new line of argument: the negligence claim should have been dismissed because there was no breach of duty. The main issue that the judge had dealt with at trial was whether the negligence claim was made void by the claimant’s consent. On that issue, the judge found that although the claimant had consented to participation in a game that might cause injury, he had not consented to injury to his face. In the Court of Appeal, the focus was the standard of care.
Dyson LJ referred to several authorities in his judgment: Wooldridge v Sumner [1963] 2 QB 43 (spectator at a horse show); Condon v Basi [1985] 1 WLR 866 (participant tackled when playing football); Caldwell v Fitzgerald and others [2001] EWCA Civ 1054 (jockey unseated by fellow jockey). He held that these cases were applicable since there was a “sufficiently close analogy” between cases of that kind, where the injury was caused in the course of some regulated or organised activity, and the instant case where there was no such formal regulation. This was because they both involve voluntary participation in an activity:
“… (i) which involves physical contact or at least the risk of it, (ii) in which decisions are usually expected to be made quickly and often as an instinctive response to the acts of other participants, so that (iii) the very nature of the activity makes it difficult to avoid the risk of physical harm…”
Applying and extending Diplock LJ’s guidance in Wooldridge v Sumner, the Court of Appeal said that for a defendant to be in breach of his duty of care to a claimant in unregulated horseplay like this, the conduct must amount to recklessness or a very high degree of carelessness; an error of judgment or lapse of skill will not do. They envisaged that, in this case, throwing a stone or deliberately aiming the bark at the claimant’s head would be sufficiently careless.
In relation to the alternative claim in battery, it had been conceded by the defendant at trial that if there was no consent, there would be liability in battery. The Court of Appeal rejected the claimant’s lack of consent argument:
“There is no basis for holding that the claimant impliedly withheld his consent to the risk of being struck by a piece of bark thrown in accordance with those understandings or conventions and without negligence.”
This is a robust, emphatic judgment on the issue of injury through play. It appears that any act complained of in this context would have to smack of malice to constitute either negligence or battery.