Barnes v Scout Association  EWCA Civ 1476
Mark Barnes was a strapping 13 year old. He played rugby for his county. In Ward LJ’s words “he was the least likely boy to need wrapping in cotton wool”.
But Mark was injured whilst playing a game called “Objects in the Dark” with his local Scout troop. This was rather like musical chairs. Instead of the music stopping, the lights would be turned out and everyone had to run into the centre of the room and grab a block. The Scout troop had played this game for many years and continued to play it after the accident.
The Defendant contended that there was a real social value in Scouts playing games like this. Whilst there were risks associated with the game, these should be balanced against the social good. The Scouts contended (again in Ward LJ’s words) that to award compensation would be an example of an overprotective nanny state robbing youth of fun simply because there was some risk involved in the exercise.
The Claimant succeeded at first instance, and the Scout Association appealed.
The Court of Appeal, by a majority, upheld the judge’s decision. The majority view was that the social utility of Scouting would clearly not make all activities permissible, no matter how dangerous. The additional danger of playing this game in the dark was not warranted by its social utility. The judge had been correct in his balance of the factors in this case.
But Jackson LJ disagreed, in a very strong dissenting judgment. Noting that playing in the dark increased the risks, he continued that this did not outweigh the social benefits of the activity. Children and teenagers have always played such games. This was structured and properly supervised. It was much safer than many games which children might play, if left to their own devices. Jackson LJ considered it was the sort of activity which attracts young people to join or remain in the scouts.
Although judgment for the Claimant was upheld, Jackson LJ’s dissent is a powerful one. Defendants can take some solace from this analysis which provides a useful point of reference for other organisations facing claims following accidents during games or socially useful activities. For claimants and defendants this is a very useful example of the “public benefit” principle set out in Tomlinson v Congleton Borough Council (2004) 1 AC 46.