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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Orchard v Lee [2009] EWCA Civ 295 (03 April 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/295.html Cite as: [2009] EWCA Civ 295, [2009] PIQR P16, [2009] ELR 178 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM POOLE COUNTY COURT
His Honour Judge Iain Hughes QC
7PH00119
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RIMER
and
LORD JUSTICE AIKENS
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Orchard |
Appellant |
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- and - |
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Lee |
Respondent |
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Benjamin Browne QC and Stephen Archer (instructed by Messrs Plexus) for the Respondents
Hearing date : 18th March 2009
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Crown Copyright ©
Lord Justice Waller :
"26. [S] was cross-examined at length by Mr Coleman for the claimant. He was asked questions about exactly how the accident occurred:
"I was running, playing a game of tag with [LR]. I did not really think I was breaking a rule, it did not occur to me that I was. I collided with Mrs Orchard. I was running across the courtyard, I had seen her but thought I wouldn't go near her, I turned round to look at [LR] and then the back of my head collided with Mrs Orchard's head. I was running backwards for a moment, I cannot say how many paces, and that led to the collision."
[S] was asked for more detail about the accident:
"The supervisors were not directly in front of me. I was slightly to the front and to the right of them. They were in front of me and to the right of me, they were facing forwards. Mrs Orchard was nearer to me. I do not know how fast I was running. I merely picked them out and adjusted my course, then they were out of my mind, I taunted [LR] then misjudged it. When I first saw them they were quite far away. They were moving towards me and there was a collision, I did not look back over my shoulder at them. At the time they were completely out of my mind. I was playing tag and taunting [LR], I had altered my course to avoid them. Assuming they did not change course I must have veered or else I would not have struck them."
"45. . . Following the guidance of the Court of Appeal in Mullin v Richards [1998] 1 WLR 1304, I am satisfied that the test is whether an ordinarily prudent and reasonable 13 year old schoolboy in each defendant's situation would have realised that his actions gave rise to a risk of injury."
"On the findings which must be accepted, what the respondent did was the unpremeditated, impulsive act of a boy not yet of an age to have an adult's realization of the danger of edged tools or an adult's wariness in the handling of them. It is, I think, a matter for judicial notice that the ordinary boy of twelve suffers from a feeling that a piece of wood and a sharp instrument have a special affinity. To expect a boy of that age to consider before throwing the spike whether the timber was hard or soft, to weigh the chances of being able to make the spike stick in the post, and to foresee that it might glance off and hit the girl, would be, I think, to expect a degree of sense and circumspection which nature ordinarily withholds till life has become less rosy.
Sympathy with the injured girl is inevitable. One might almost wish that mediaeval thinking had led to a modern rule of absolute liability for harm caused. But it has not; and, in the absence of relevant statutory provision, children, like everyone else, must accept as they go about in society the risks from which ordinary care on the part of others will not suffice to save them. One such risk is that boys of twelve may behave as boys of twelve; and that, sometimes, is a risk indeed."
Lord Justice Rimer
Lord Justice Aikens