Read the case ofBlake v Galloway[2004] EWCA Civ 814, [2004] 1 W.L.R. 2844

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2004June16;24

[2004] 1 WLR

On the defendants appeal

Court of Appeal

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Held, allowing the appeal, (1) that the participants in horseplay owed each other a duty to take reasonable care not to cause injury; that a participant breached that duty of care only where his conduct amounted to recklessness or a very high degree of carelessness; that the defendants conduct constituted at worst an error of judgment or lapse of skill; and that, in the circumstances, there was no breach of the duty to take reasonable care ( post, paras1517,22,2527).

WooldridgevSumner[1963]2QB43,CAandCondonvBasi[1985]1WLR866, CA applied.

(2) That in a sport which inevitably involved the risk of physical contact, the participants were taken impliedly to consent to those contacts which could reasonably be expected to occur in the course of the game and to assume the risk of injury from such contacts; that although the horseplay in which the parties were engaged was not a regulated sport or game it was conducted in accordance with objectively ascertainable, tacitly agreed understandings or conventions; that by participating in the game the claimant impliedly consented to the risk of a blow on any part of his body, provided that the missile was thrown more or less in accordance with those understandings and conventions, without negligence and without intent to cause injury; and that, in the circumstances, the object was thrown in a manner to which the claimant had consented ( post, paras21,2427).

The following cases are referred to in the judgment of Dyson LJ:

CaldwellvMaguire(unreported)30September1994,HollandJ;[2001]EWCACiv1054; [2002] PIQR P45, CA

CondonvBasi[1985]1WLR866;[1985]2AllER453,CADonoghuevStevenson[1932]AC562,HL(Sc)LanevHolloway[1968]1QB379;[1967]3WLR1003;[1967]3AllER129,CARootesvShelton[1968]ALR33;(1967)116CLR383WooldridgevSumner[1963]2QB43;[1962]3WLR616;[1962]2AllER978,CA

The following additional cases were cited in argument:

HarrisonvVincent[1982]RTR8,CAKellyvFarransLtd[1954]NI41SmoldonvWhitworth[1997]PIQRP133,CA

The Weekly Law Reports

5 November 2004

[2004] EWCA Civ814SirAndrewMorrittV-C,ClarkeandDysonLJJ

Negligence Duty of care to whom? Horseplay Claimant and defendant playing informal game Claimant suering injury Standard of care required of participants in horseplay Whether duty of care breached Whether battery Whether defence of consent available

The defendant was with a group of friends who were throwing twigs and pieces of bark at each other. The game was good-natured and high-spirited and the claimant joined in. He threw a piece of bark which struck the defendant on the lower part of his body. The defendant picked up the bark and threw it towards the claimant who was struck in the face and suered a serious injury to his eye. The claimant sought damages for negligence and/or battery. The judge held that the injury had been caused by the negligence and battery of the defendant, and rejected the defence that the claimant had consented to the risk of being struck.

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1. answer tAWilksvCheltenhamHomeguardMotorCycleandLightCarClub[1971]1WLR668; [1971]2All ER369, CA
2. The following additional case, although not cited, was referred to in the skeleton arguments:
3. MurphyvCulhane[1977]QB94;[1976]3WLR458;[1976]3AllER533,CA
4. BAPPEALfrom District Judge Walker sitting at Plymouth County Court
5. By a claim form issued on20December2002and particulars of claim dated14March2003, the claimant, Ross Blake, sought damages from the defendant, Stephen Galloway, for personal injuries and nancial losses arising out of an incident on29May1997allegedly caused by the negligence and/ or battery of the defendant. On12February2004District Judge Walker in the Plymouth County Court held that the claimants injury had been caused by the negligence and battery of the defendant, he rejected the defence of volenti non t injuria but reduced the agreed damages of 23,500
6. by50%to reect the claimants contributory negligence.
7. By an appellants notice led on26February2004and pursuant to
8. permission granted by the Court of Appeal (Latham LJ) on7April2004the
9. defendant appealed. The grounds of appeal were, inter alia, as follows.

he D(1) The judge misdirected himself in law in asking himself whether the claimant had consented to the risk of being unfavourably treated; he ought to have posed the question: did the claimant consent to the risk that the piece of bark would be thrown back at him without particular care being taken over aim so that it would or might strike him in the face? (2) Although the judge held that the claimant did not consent to the injury to his face, the issue was whether or not he consented to the risk of the way in which the piece of bark was thrown at him, namely, in his general direction, without aim being concentrated at his lower body. (3) The judges conclusion on the facts was plainly wrong in that the overwhelming weight of evidence was that before the claimant had decided to involve himself in the game, the other boys had been throwing bark/mulch in each others general direction at random, while in high spirits, without any particular care being taken by any of them

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to concentrate their aim on the lower parts of each others bodies. The facts are stated in the judgment of Dyson LJ.

Richard Stead(who did not appear below) for the defendant.Nathan Tavaresfor the claimant.

24June. The following judgments were handed down.

DYSON LJ

1On29May1997the claimant was practising with a jazz quintet in which he played with four of his friends. One of them was the defendant. They were all approximately15years of age at the time. They were at Battisborough House, near Mothercombe in South Devon. At lunchtime, they decided to take a break. They went into the grounds and started to engage in some horseplay. This involved throwing twigs and pieces of bark chipping at each other. At rst, the claimant did not join in. But after a while, he picked up a piece of bark chipping, approximately four centimetres

Curadvvult

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in diameter, and threw it towards the lower part of the defendants body.AThe defendant picked up the same piece of bark and threw it back at the claimant striking him in the right eye, causing a signicant injury. The claimant started proceedings claiming that the injury was caused by

the defendants battery and/or negligence. The defendant relied on the claimants consent as a defence to the claim in battery, and denied negligence. At the trial, the main focus of his defence to the claim in negligence was his reliance on the maxim volenti non t injuria: his case was that the claimant had consented to the risk of being struck by the piece of bark even if it was thrown without reasonable care. In the alternative, the defendant alleged that the injury was caused or contributed to by the claimants own negligence. Damages were agreed at 23,500.

2It will be necessary to examine the judgment in a little more detail later, but it is sucient at this stage to say that District Judge Walker, sittingCat Plymouth County Court, held that the injury was caused by the negligence and battery of the defendant, rejected the defence of volenti non t injuria,

but reduced the damages by50%to reect the claimants contributory negligence. The defendant now appeals with the permission of Latham LJ.

3There was very little dispute as to the facts at the trial. It was common ground that these youths were engaged in high-spirited and good-natured horseplay. As the judge said:

there was general messing around by all the participants. Nobody was throwing items towards anybodys head. There was no feeling of animosity between anybody taking part, and indeed no one was picking on any of the others.

They were just randomly throwing twigs, pieces of bark and mulch in theEgeneral direction of each other.

4As regards the throwing that resulted in the injury to the claimants eye, the only dispute of fact was as to whether the claimant and the defendant were between about10and15metres apart (as the defendant said in his evidence) or45metres apart (as the claimant said). The judge preferred the evidence of the claimant on this point. They were on a slight slope vis--vis each other, the defendant being at a higher level than the claimant. The claimant threw the piece of bark in the direction of the defendants lower body, striking him on the bottom. He was not aiming at the defendants head. The defendant picked the piece up, and threw it back in the general direction of the claimant, not aiming at his head. He did not shout any warning at the claimant, who was not looking in the direction of the defendant when the bark was thrown at him. Had he been doing so, it is probable that he would have seen it coming and been able to take avoiding action.

Negligence

5As I have said, the principal issue at trial was whether the claim in negligence was defeated by the claimants consent (encapsulated in the maxim volenti non t injuria) as explained in a number of authorities, suchHasWooldridgevSumner[1963]2QB43,69,perDiplockLJ:

The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk . . .

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and requires on the part of the plainti at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran.

6The judge expressed his conclusion on the issue of negligence and consent in these terms:

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In my view, taking into account all the circumstances in this case, I nd that the claimant may well have consented to some risk in participating in this game which perhaps might have beenI am sure nobody when they started o expected anybody [sic] to be caused any injury, but there was some risk of that in some similar way to the analogy of throwing snowballs but I do not think that in this particular case the defendant took sucient care to make sure that injury to the claimants head would not take place. It may be that in the minds of participants other than the claimant nobody particularly cared where items went. I am satised, as I say, in the particular circumstances of this case, there was, although consent to participate in a game which might have caused injury, no consent to the injury to the claimants face. I do not think he had the adequate opportunity of defending himself as he was not facing the defendant when the piece of bark was thrown.

7In this court, Mr Stead (who did not appear at the trial) submits that the claim in negligence should have been dismissed on the simple ground that, in the particular circumstances of this case, there was no lack of reasonable care on the part of the defendant. Accordingly, the issue of volenti did not arise. Alternatively, he submits that, if there was a lack of reasonable care, then the judge was wrong to reject the defence of volenti. Although this represents a signicant shift of emphasis from the way in which the defence to the claim in negligence was presented in the court below, there was no objection by Mr Tavares.

8I start with the question of breach of duty. I do not believe it to be disputed that, generally speaking, participants in sport and games generally owe each other a duty of care. Dicult questions can, however, arise as to whether on the facts of any particular case there has been a breach of that duty. The standard of care which the common law requires depends on all thecircumstancesofthecase.InWooldridgevSumner[1963]2QB43the plainti was a spectator at a horse show who was injured when the defendant rode his horse too fast and lost control. Although that was a case about a spectator, and not a participant, it is clear that the observations made by this court, and in particular by Diplock LJ, at p67, are of application to spectators and participants alike. He said that what is reasonable care in a particular circumstance is a jury question, which (in the absence of direct guidance from authority) may be answered by inquiring whether the ordinary reasonable person would say that in all the circumstances the defendants conduct was blameworthy. He said, at p68:

The practical result of this analysis of the application of the common law of negligence to participant and spectator would, I think, be expressed by the common man in some such terms as these: A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act may involve an

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error of judgment or lapse of skill, unless the participants conduct is suchAas to evince a reckless disregard of the spectators safety.

9CondonvBasi[1985]1WLR866wasaparticipantcase.The plainti and the defendant were playing for opposing teams in a football match when the plainti suered serious injuries as a result of a foul tackle

by the defendant. The judge held that there was an obvious breach of the defendants duty of care because he showed a reckless disregard of theBplaintis safety and his conduct fell far below the standards which might reasonably be expected of anyone playing the game. The defendants appeal

to this court was dismissed. Sir John Donaldson MR, at p867, cited from thedecisionoftheHighCourtofAustraliainRootesvShelton[1968] ALR33, saying:

Barwick CJ said, at p34: By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither denitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.

Kitto J said, at p37: in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plainti in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintis injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organised aair is judged; for the tribunal of fact may think that in the situation in which the plaintis injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the rules of the game. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.

I have cited from those two judgments because they show two dierent approaches which, as I see it, produce precisely the same result. One is to take a more generalised duty of care and to modify it on the basis that the participants in the sport or pastime impliedly consent to taking risks which otherwise would be a breach of the duty of care. That seems to be the approach of Barwick CJ. The other is exemplied by the judgment of Kitto J, where he is saying, in eect, that there is a general standard of care, namely theLordAtkinapproachinDonoghuevStevenson[1932]AC562thatyou

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Aare under a duty to take all reasonable care taking account of the circumstances in which you are placed, which, in a game of football, are quite dierent from those which aect you when you are going for a walk in the countryside. For my part I would prefer the approach of Kitto J, but I do not think it makes the slightest dierence in the end if it is found by the tribunal of fact that the defendant failed to exercise that degree of care which was appropriate in all the circumstances, or that he acted in a way to which the plainti cannot be expected to have consented. In either event, there is liability.

10ThenaldecisiontowhichIwishtoreferisCaldwellvMaguire[2002] PIQR P45, another decision of this court. The claimant, a professional jockey, had been injured when he was unseated as a result of manoeuvres by two fellow jockeys (the defendants). The trial judge,

CHolland J (unreported)30September1994, reviewed some of the authorities(includingWooldridgevSumner[1963]2QB43andCondonv Basi[1985]1WLR866), from which he extracted these ve propositions:

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(1) Each contestant in a lawful sporting contest (and in particular a race) owes a duty of care to each and all other contestants. (2) That duty is to exercise in the course of the contest all care that is objectively reasonable in the prevailing circumstances for the avoidance of iniction of injury to such fellow contestants. (3) The prevailing circumstances are all such properly attendant upon the contest and include its object, the demands inevitably made upon its contestants, its inherent dangers (if any), its rules, conventions and customs, and the standards, skills and judgment reasonably to be expected of a contestant. Thus in the particular case of a horse race the prevailing circumstances will include the contestants obligation to ride a horse over a given course competing with the remaining contestants for the best possible placing, if not for a win. Such must further include the Rules of Racing and the standards, skills and judgment of a professional jockey, all as expected by fellow contestants. (4) Given the nature of such prevailing circumstances the threshold for liability is in practice inevitably high; the proof of a breach of duty will not ow from proof of no more than an error of judgment or from mere proof of a momentary lapse in skill (and thus care) respectively when subject to the stresses of a race. Such are no more than incidents inherent in the nature of sport. (5) In practice it may therefore be dicult to prove any such breach of duty absent proof of conduct that in point of fact amounts to reckless disregard for the fellow contestants safety. I emphasise the distinction between the expression of legal principle and the practicalities of the evidential burden. See [2002] PIQR P45,4748.

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Hpropositions were rejected. Tuckey LJ said, at para23, that the threshold for liability was high:

there will be no liability for errors of judgment, oversights or lapses of which any participant might be guilty in the context of a fast-moving contest. Something more serious is required. I do not think it is helpful to

11On appeal, there was no dispute as to the correctness of the rst three propositions, but it was submitted on behalf of the defendants that the last two were unduly restrictive and not supported by the earlier authorities. The criticisms of Holland Js formulation of the last two

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say any more than this in setting the standard of care to be expected inAcases of this kind.

12Judge LJ said, at para37, that, in the context of sporting contests, it

is right to emphasise the distinction between conduct which is properly to be characterised as negligent and errors of judgment, oversights or lapses of attention of which any reasonable jockey may be guilty in the hurly burly of

a race. Lord Woolf CJ agreed with both judgments.B

13In the present case, the horseplay in which the ve youths were engaged was not a regulated sport or game played according to explicit rules, nor was it organised in any formal sense. Rather, it was in the nature of informal play, which was being conducted in accordance with certain tacitly agreed understandings or conventions. These were objectively ascertainable by the claimant, since he could see the nature of the horseplay in which his friends were indulging before he joined in. The understandings or conventions were that the objects that were being thrown were restricted to twigs, pieces of bark and other similar relatively harmless material that happened to be lying around on the ground; they were being thrown in the general direction of the participants in a somewhat random fashion, and not being aimed at any particular parts of their bodies; and they were being thrown in a good-natured way, without any intention of causing harm. The nature of the objects and the force with which they were being thrown were such that the risk of injury (almost certainly limited to injury to the face) was very small. There was no expectation that skill or judgment would be exercised, any more than there would be by participants in a snowballing ght. These were the characteristics of the game in which the claimant decided to participate.

14The oending blow was caused by a piece of bark which was thrown in accordance with the tacit understandings or conventions of the game in which the claimant participated. It was thrown in the general direction of the claimant, with no intention of causing harm, and in the same high- spirited good nature as all the other objects had been thrown.

15I recognise that the participants in the horseplay owed each other a duty to take reasonable care not to cause injury. What does that mean in the context of play of this kind? No authority has been cited to us dealing with negligence in relation to injury caused in the course of horseplay, as opposed to a formal sport or game. I consider that there is a suciently close analogy between organised and regulated sport or games and the horseplay in which these youths were engaged for the guidance given by the authorities to which I have referred to be of value in the resolution of this case. The only real dierence is that there were no formal rules for the horseplay. But I do not consider that this is a signicant distinction. The common features between horseplay of this kind and formal sport involving vigorous physical activity are that both involved consensual 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 dicult to avoid the risk of physical harm.

16I would, therefore, apply the guidance given by Diplock LJ inWooldridgevSumner[1963]2QB43,althoughinaslightlyexpandedform, and hold that in a case such as the present there is a breach of the duty of care

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Aowed by participant A to participant B only where As conduct amounts to recklessness or a very high degree of carelessness.

17If the defendant in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the claimant, or deliberately aimed the piece of bark at the claimants head, then there might have been a breach of the duty of care. But what happened here was, at its highest, an error of judgment or lapse of skill (to quote from Diplock LJ, at p68), and that is not sucient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the defendants conduct came nowhere near recklessness or a very high degree of carelessness. It is true that this game was not being played in a manner that was closely analogous to the fast and furious conditions of a game of

Cfootball or a horserace, where, in determining what reasonable care requires, account has to be taken of the fact that decisions are taken in the heat of the moment. But these youths were indulging in horseplay after spending the morning indoors. They were high-spirited and having fun, and no doubt the game was conducted at some speed and in a fairly vigorous fashion. It was implicit that nobody was expected to take care to aim the objects at any particular part of the body. They were simply aimed in the general direction of the intended victim.

18The judge said that he did not think that in this particular case the defendant took sucient care to make sure that injury to the claimants head would not take place. Since the argument before him was directed primarily to the issue of consent, it is not surprising that he did not address the issue of breach of duty in any detail. Mr Tavares submits that we should respect the judges nding, and that we should only interfere if it is plainly wrong. He points out that the judge had the advantage, denied to us, of seeing the witnesses, and forming a view on what is essentially a matter of judgment, and submits that the judges nding cannot be said to be plainly wrong. There are two answers to this. First, the judge did not consider what standard of care was required in the circumstances of this case. Indeed, he was discouraged from doing so by Mr McLaughlin (then appearing for the defendant) who submitted that the only real issue in the case was consent, andthattherewasnoneedtoconsiderauthoritiessuchasCondonvBasi[1985]1WLR866. Secondly, for the reasons that I have given I consider that the judges conclusion was in any event plainly wrong. This was an unfortunate accident, and no more. There was no breach of the duty to take reasonable care.

19In these circumstances, it is unnecessary for the purposes of dealing with the claim in negligence to decide whether the judge was right to hold that the claim was not defeated by volenti. But I shall have to deal with the issue of consent when I deal with the claim in battery to which I now turn.

Battery

20It is trite law that a battery is the intentional and direct application of force to another person, and that where there is consent there is no battery. The question of what amounts to consent in the context of games and sport is not always easy to determine. Consent is rarely given expressly: it can be, and usually is, implied from conduct. Thus it can obviously be inferred from the act of taking part in a boxing match or other contact sport that a

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participant consents to being subjected to a degree of force. I would acceptAas an accurate statement of the law the following passage inClerk & Lindsell on Torts,18th ed (2000), p681, para1308:

The claimant cannot claim compensation for the consequences of an

act which he has freely invited, or in respect of which he has assumed the risk. The footballer cannot allege that a legitimate tackle is a battery. Thus, when the defendant maintains that the claimant consented to theBforce used against him, the key question becomes whether that consent extended to the degree or type of force employed against him. The claimants consent need not be specic to the alleged act of battery. He may be volenti to the general harm envisaged in a ght or in sport.

21In a sport which inevitably involves the risk of some physical contact, the participants are taken impliedly to consent to those contactsCwhich can reasonably be expected to occur in the course of the game, and to assume the risk of injury from such contacts. Thus, for example, in the context of a ght with sts, ordinarily neither party has a cause of action for any injury suered during the ght. But they do not assume the risk of a savage blow out of all proportion to the occasion. The man who strikes a blow of such severity is liable in damages unless he can prove accident or self-defence:seeperLordDenningMRinLanevHolloway[1968]1QB379,386387.

22It is dicult to envisage circumstances in which a participant in a contact sport or game would be taken to have impliedly consented to an act which would otherwise amount to a battery, where that act was negligent in

the sense previously explained. As we have seen, a breach of the duty of care

in such circumstances will only be established where there has beenErecklessness or a very high degree of carelessness.

23So how should these principles be applied in the present case? It was conceded on behalf of the defendant before the judge that, but for the issue of consent, he would be liable in the tort of battery. The judge said that it may be that in the minds of participants other than the claimant nobody particularly cared where items went, but, he added: I am satised, as I say, in the particular circumstances of this case, there was, although consent to participate in a game which might have caused injury, no consent to the injury to the claimants face.

24In my judgment, the judges conclusion on this issue was clearly wrong. By participating in this game, the claimant must be taken to have impliedly consented to the risk of a blow on any part of his body, provided that the oending missile was thrown more or less in accordance with theGtacit understandings or conventions of the game. As I have already explained, this is indeed what happened. 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. The question of the extent of the claimants implied consent is a matter for the court to determine in the light of all the surrounding circumstances. There is nothing in those circumstances which indicates that the claimants consent was restricted to the risk of being struck by objects being thrown at the lower part of his body. The game was played on the basis that the objects were thrown at no particular part of the body. It follows that an object thrown in the general

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Adirection of a participant, without negligence and without intent to cause injury, but which happened to hit him in the face, was being thrown in accordance with the understandings and conventions of the game, and in a manner to which the participants had consented.

Conclusion

25This was a most unfortunate accident, but it was just that. Young persons will always want to play vigorous games and indulge in horseplay, and from time to time accidents will occur and injuries will be caused. But, broadly speaking, the victims of such accidents will usually not be able to recover damages unless they can show that the injury has been caused by a failure to take care which amounts to recklessness or a very high degree of carelessness, or that it was caused deliberately (ie with intent to cause harm). For the reasons that I have given, I would allow this appeal and dismiss the claim.

CLARKE LJ

26I agree.

SIR ANDREW MORRITT V-C

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27I also agree.

Appeal allowed. Solicitors: Lyons Davidson, Plymouth; Wolferstans, Plymouth.

These pages will be reissued in the next part

answer the following questions:

1)What tortious issues are raised by this case?[10%]

2)Explain the arguments upon which the appeal was based.[25%]

3)What was the judgment of the Court of Appeal and explain the legal reasoning of that court in either allowing or dismissing the appeal?[65%]