Duty of care and parental supervision

At first instance SSR succeeded against Bosworth but failed in his claim against J’s parents. The Trust appealed the finding against it and SSR…

SSR v (1) Bosworth Water Trust (2) AB (3) JBW (3) [2018] EWHC 444 (QB)

Facts

The claimant (SSR), aged 9, was invited by the second and third defendants to celebrate the 10th birthday of their son (J) at the first defendant’s theme park. SSR and J were in a group of four boys playing crazy golf with metal putters. During the game J became frustrated and swung his club which hit SSR in the face causing a serious injury to his eye resulting in permanent loss of vision. At first instance SSR succeeded against Bosworth but failed in his claim against J’s parents. The Trust appealed the finding against it and SSR appealed against the dismissal of the claim against the parents.

Appeal judgment

The key findings on appeal were:

  • Bosworth’s failure to carry out a risk assessment was negligent.
  • A risk assessment was “a basic safety requirement” for the enterprise being run.
  • The risk assessment would have identified a need to mitigate the risk of injury by misuse of clubs.
  • The risk ought to have been mitigated by appropriate instructions and guidance to users.
  • Had J been given an appropriate instruction he would not have behaved as he did.
  • J’s mother was in charge of the group and owed the boys a duty of care.
  • As she was supervising from a distance it was reasonable to expect her to give more detailed safety instructions.
  • She knew J to be “boisterous and impetuous” and he required firm handling.
  • J had swung the club in the same way before the injury occurred and this had not been seen or addressed.
  • The failure to instruct J not to swing his club was negligent and causative of the injury.

Comment

The finding of liability against the theme park is arguably unsurprising in the absence of simple safety measures or instructions to young children about the danger of swinging the putters. The negligence finding against the ‘lay’ parent in charge of the group is perhaps more unusual, particularly as the theme park had provided no guidance for parents and the injury occurred when J had swung the club in anger. Many parents who attend parties and observe from afar might shudder at the decision. However, as ever, it is important to bear in mind that the decision is driven by specific findings including the age of the children, the nature of the activity, the knowledge of J’s behaviour and the decision to supervise from a distance. The decision should probably not be seen as widening the potential liability of parents to children. Indeed, it can be contrasted with the Court of Appeal judgment in the school case of Hammersley-Gonsalves v Redcar & Cleveland BC [2012] EWCA Civ 1135 in which a supervising teacher was not negligent in his supervision of a golf lesson during which a 12 year old pupil was injured after being hit in the face by a club swung by another pupil. The teacher had provided appropriate instructions to the class of 22 and the supervision was adequate; he could not reasonably be expected to see every action of each child at all times. Arguably if J’s mother had been closer to this small group, and therefore in a position to address any issues that arose, then there would have been more scope for the incident to have been treated as a simple accident without fault (from her perspective). The issue of apportionment of liability between the defendants is not dealt with in the judgment.

To discuss any of the issues in this update please contact:

Peter Wake, Partner peter.wake@weightmans.com or 0151 242 6866 or Rachael Fawcett, Solicitor rachael.fawcett@weightmans.com or 0151 243 3317

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