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When playing in the dark is negligent

There is a lot of talk about whether we are living in a nanny state, as more rules are made and people continue to bring compensation claims after accidents for which there is apparently very little negligence. Our judges however go to great lengths to study the facts of each individual case in order to decide whether a defendant is to blame for an injury.

The recent case of Barnes V Scout Association is a good example.

Imagine, for a moment, that you are the parent of a 13 year old boy and you are hosting a birthday party, at home, for him and nine other boys of a similar age. You decide to play the old fashioned game of musical chairs but alter the rules slightly so that large wooden blocks are placed on the floor and, instead of racing to a chair, the boys have to run to pick up a block. You put out the number of blocks on the floor equal to the number of boys taking part, less one, and knock out rounds are played until one boy ends up with one block. You change the game further in that the signal for racing to the middle of the floor to pick up a block is not the music stopping but the lights, in an already semi-dark room, are switched off completely. This results in all the boys having to race for blocks of wood in total darkness. Is this the sort of game you would allow the children to play?

This game was, indeed, played by the Scout Association in a Scout Hall. The game started with eleven boys running around, with the main lights off, so that the hall was in semi-darkness and, when the lights were switched off completely, this was the signal for the boys to race into the middle of the room to pick up a wooden block. One of the young Scouts, Barnes, was in one corner of the hall when the lights went out and he started to run towards the middle of the hall to grab a wooden block. As he did so, he heard one of the blocks hitting the floor and sliding away and he therefore changed direction in order to try and pick up that block. As he did so, he was running fast and collided with wooden bench at the side of the hall, which he had not seen. He suffered a serious injury to his shoulder as he fell on it.

Barnes’ parents brought a claim against the Scout Association for allowing such a game to take place in the dark. The Scout Association’s reason for the darkness was that it added additional excitement to the game but the Judges, in the Court of Appeal, decided that this was an unacceptable risk and that therefore the Scout Association were negligent.

The case demonstrates how Judges are prepared to consider the value of an activity in order to decide whether the risk involved is acceptable. The Judges realised that some of the activities which children and, in particular, Scouts, undertake, involve risk and that some of those activities have either an educational or a social benefit which children need in order to grow up. The Judges decided that any activity which has an educational or social benefit and some risk attached, is not negligent.

This accident would not have occurred had it been played with all the lights on because Barnes would not have fallen onto the wooden bench – he would have seen it, and thus avoided it, or would have been able to use it safely to break his fall. The Judges found that it was negligent of the Scout Association to allow this game to be played in the dark. The effect of the darkness only provided the additional element of excitement, rather than any educational or social benefit, over and above playing the game in good lighting.

The Judges therefore decided, in this particular case, that the element of playing the game in the dark was an unacceptable risk and that the Scout Association were negligent.

This does appear to be a sensible decision because it is inevitable that if boys are going to run around in the dark they are going to collide, either with each other or an inanimate object. It does, however, show that Judges are prepared to consider not only the risk and the accident but also the social and educational value of the activity in order to balance the two.

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