Court of Appeal makes clear any supervision of children involves a duty of care - whether it is discharged will be fact specific to the activity involved

Posted: 27/03/2018

The recent case of Bosworth Water Trust v SSR and others  [2018] EWHC 444 (QB) considered the balance between provision of entertaining activities (specifically with reference to children) and adequate attention to safety risks.

Over the last ten years or so, the courts have been keen to stress that the risks of being sued and perception of a compensation culture should not result in ‘normal’ day-to-day activities being curtailed, and that a balance must be struck between enabling activities that have social / leisure / health benefits and keeping an eye on the safety of those participating.
In Bosworth, the court looked at the issue of the responsibility of two adults for the supervision of four 9/10 year old boys playing crazy golf at a water park. The group were there as a birthday treat for one of the boys and had been taken by his parents. They were provided with metal golf putters and golf balls by the water park staff, but not given any instructions or guidance. It was the water park’s policy not to give guidance to children on the basis that they would always be supervised by adults / parents. Whilst playing, one of the children – ‘the birthday child’ – swung his club in “an excessive” manner in frustration. His club collided with the claimant child, causing sufficient damage for him to lose the vision in one eye. It was noted in the evidence that ‘the birthday child’ was a “boisterous” and “impetuous” child and that he had swung the club in a similar manner earlier without this being noticed or acted upon by his parents or the water park’s staff.

At first instance the court felt that the responsibility rested only with the water park as the providers of the crazy golf course and equipment for not providing any instruction, including simple ‘dos’ and ’don’ts’, and attached no liability to the parents. The water park appealed and the Court of Appeal took the view (contrary to the court at first instance) that the parents supervising the children (their own and others) also owed a duty of care which they had not discharged. The Court of Appeal upheld the lower court’s finding that the water park’s failure to carry out a risk assessment, and from that identify the need to provide instructions and guidance about use of the clubs because of the foreseeable risk of injury, was negligent and in breach of its duty of care owed to children attending the park. The Court of Appeal set out that where children are participating in activities that give rise to a reasonable foreseeable risk of injury, the law imposes a duty on the part of a parent, those acting in locus parentis, or the organisers of such activities, to exercise reasonable care. This duty will often only be discharged where it can be proven that appropriate instructions and/or supervision have been provided. In the context of this incident, the Court of Appeal held that the remit of the duty of the parents was not just to supervise the children, but to give verbal instructions on safety in circumstances where these had not been provided by the water park staff. As above, the court was also critical of the water park for not providing any guidance or instruction but felt that it was significant in terms of the parental responsibility that the supervising parents knew that this was the case.

The Court of Appeal stressed that in each instance the key is to look at who owes a duty of care and what is required to be done by that person or party in order to discharge that duty. In this instance, it held that both the water park and the supervising parents owed a duty to the children – and both should have appreciated that they required instruction and supervision. The Court of Appeal held that both the water park staff and parents should have provided some simple instructions to minimise the risks involved, which should have included not swinging clubs above head height. As the court of first instance made a finding of fact that had the child who caused the injury been given that simple and clear instruction, the accident would have been avoided. Since it was established that both the water park and the parents owed a duty to give such instructions to the children, then they failed in that duty. Had they discharged it, then the accident would have been avoided.

Philippa Luscombe, partner in the personal injury team at Penningtons Manches, comments: “This is an interesting case, not least due to the decision by Bosworth to try and appeal the findings of the first instance court. Given that Bosworth provided metal putters and solid golf balls to young children, it is not surprising that both courts took a dim view of its complete failure to have any risk assessments, safety measures or rules and guidance in place. The risk of injury seems clear and considering the water park could have put simple measures in place to avoid this, the finding of negligence on its part is unsurprising.

“The finding of negligence against the supervising parents is more unusual given how common it is for one or more parents to carry out and supervise activities like this involving their own children and others. However, the Court of Appeal was at pains to stress that the findings of what a duty of care encompasses and whether it is breached will be entirely fact-specific. Here the group of four boys engaging in this type of activity, with no rules or guidance from the park, was held to impose a clear duty on the parents to supervise and provide guidance because of an obvious risk of them causing each other injury. Part of the issue in this case appeared to be that supervision was carried out at a distance, no supervision / instructions were given and particularly not to their own child, despite their knowledge of his behavioural tendencies. The court felt that if the parents had laid down some ground rules and watched closely, they could have made it clear what behaviour was and was not acceptable and therefore responded when their son’s behaviour escalated the first time.

“It would seem that the court is still trying to keep that balance. No one wants children’s birthday activities and parties to be stopped, but equally parents looking after other children do owe a duty to take care of their safety. It is clear that in this case the court felt that the parents concerned had not taken these steps. The fact that the injury caused by their own child with some history of impetuous behaviour was so severe (and in turn that a serious injury by reckless use of the clubs was foreseeable) are likely to have been significant factors in the decision-making. The case does not decide anything new as such, but makes the point that anyone taking responsibility for children owes a duty of care. If they do not look out for the safety of those children, then there could potentially be a liability on their part if injury is sustained.

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