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The "cotton wool culture": a crazy golf decision?

The Bosworth Water Trust v SSR & Ors
High Court (QBD)
12 March 2018

A mother who took responsibility for supervising children at a birthday party was negligent for failing to instruct the children not to swing their golf clubs. The amusement park, at which the birthday party was taking place, was also negligent for failing to carry out a risk assessment, implement safety rules and communicate rules to visitors. They were both liable for the actions of a 10 year old who swung his metal golf club hitting his friend in the eye, causing serious injury. Lucy Williams looks as the issues in The Bosworth Water Trust v SSR & Ors (2018).

Background

J's parents took J and three of his friends to an amusement park owned and operated by Bosworth Water Trust (Bosworth) for J's tenth birthday party. J and his friends were playing on the crazy golf course at the amusement park at the time of the accident. J's mother was somewhere "nearby" and not with the children on the golf course. J's father had gone back to the family car thereby delegating his responsibility to look after the children to J's mother. J, after becoming frustrated, swung his metal golf club up high and in doing so accidentally struck his friend, SSR, on the head causing serious injury. SSR lost all vision in his left eye.

SSR sued Bosworth and J's parents for damages arising out of their alleged negligence. HHJ Hampton concluded at the trial that Bosworth was liable because staff at the amusement park failed to give clear safety instructions to customers, specifically instructions not to swing the golf clubs. A risk assessment carried out by Bosworth post-accident identified the risk of a child being hit by a golf club. Control measures were introduced which included rules of play, signage communicating the rules, and provision of rubber putters. HHJ Hampton found that an instruction to J not to swing the golf clubs would have prevented the accident.

In respect of the liability of J's parents, HHJ Hampton found that they too had failed to provide an instruction to J not to swing the golf clubs. They were aware that J was at times boisterous and required firm handling. J's sports coaches gave evidence at trial that J was capable of following instructions when playing sports. In her judgment HHJ Hampton said she had given "anxious consideration" to J's parents' potential liability, but had found that "there was a level of supervision and instruction, on the balance of probabilities, of J's parents", so that  the claim against J's parents was dismissed.

The appeals

Mrs Justice Whipple DBE heard the appeal of Bosworth against the decision that it was liable and that of SSR against the finding that J's parents were not. Bosworth supported SSR's appeal.

Bosworth appealed on the grounds that the court (1) erred in finding causation was established; (2) imposed a standard of care which was too high; (3) erred in relation to the element of foreseeability; and (4) erred in finding there was a duty to warn participants not to swing their clubs.

SSR appealed the decision that J's parents were not liable on the basis that they had primary responsibility for supervising the boys. Bosworth supported SSR's appeal and added that if Bosworth was liable for failing to warn and supervise, J's parents must also be liable for such a failure.

In her judgment, Mrs Justice Whipple noted that J had swung his club on one occasion prior to the swing that caused the accident and it was therefore not a one-off. She inferred that J had not been told not to swing his club and did not know the rule.

It was accepted that both Bosworth and J's parents owed SSR a duty of care. Further, it was agreed that the nature of the duty between Bosworth and J's parents might differ based on the circumstances and their relationship with SSR.

Bosworth's appeal

With regards Bosworth's appeal, Mrs Justice Whipple concluded that the standard required by the trial judge of Bosworth was not too high, in fact far from it. The standard imposed required Bosworth to take "ordinary and basic steps to avoid foreseeable risks". Risk assessments are basic safety requirements for such businesses and a risk assessment should have been carried out and steps taken to mitigate the risks identified. A rule should have been in place and a warning notice displayed. These simple measures would have cost very little and is the sort of control regularly in place at this type of premises.

HHJ Hampton's findings in respect of causation flow from the fact that if a risk assessment had been carried out, the risk of injury would have been identified and a warning would have been given to J.

Bosworth argued that a sign displaying the rule would have made no difference. J swung his club in frustration and that type of impetuous behaviour would not have been prevented by a notice in the shop. HHJ Hampton had found as a fact that J would not have swung the club if he had been instructed not to. Bosworth's grounds of appeal did not challenge HHJ Hampton's finding of fact in that regard and that argument was consequently not open to Bosworth. In any event, the evidence of J's sports coaches confirmed that J would follow instructions in a sporting context.

The risk of serious harm was reasonably foreseeable. It was plainly possible that children provided with metal putters could cause serious injury to themselves or others. However, the risk was not so obvious that mitigating measures were not required. This was particularly the case because children lack the same insight as adults in respect of risk.

Bosworth's appeal was dismissed.

SSR's appeal

HHJ Hampton had found that J's mother had given some instruction but it was not possible to say what that instruction involved. J's mother's own evidence inferred that she had not told the boys not to swing the clubs.

Mrs Justice Whipple found that neither Bosworth nor J's mother had instructed the boys not to swing their clubs. Counsel for J's parents accepted the conclusion on the evidence that J's mother did not instruct the boys not to swing their clubs.

The claimant's appeal hinged on whether J's mother's failure to instruct the boys not to swing the clubs was in breach of her duty of care owed to SSR.

J's mother knew that the boys had been given no instruction by Bosworth. She also knew that J could be boisterous and impetuous. If J's mother had intended to stay with the boys on the crazy golf course, "light touch" instructions may have been sufficient because she would have been able to intervene immediately if there was a problem. However, as J's mother was "somewhere nearby" her attention was clearly not constant. This was evidenced further by the fact that she missed J swinging his club on two occasions. HHJ Hampton found that constant supervision was not required and on appeal Mrs Justice Whipple respected that decision. However, given that the boys were not under constant surveillance the need for clear safety instructions was greater.

HHJ Hampton did not say whether J's mother's supervision was sufficient. In dismissing the claim against J's parents she inferred that she thought that it was.

On appeal it was noted that HHJ Hampton had accepted that J required firm handling, that the children should have been given clear instructions not to swing the club and that J would not have swung the club if he had been told not to. Mrs Justice Whipple in her judgment concluded that those findings could not be reconciled with the decision that the supervision provided by J's mother was sufficient. The failure to provide clear instructions not to swing the club was a breach of J's mother's duty of care which caused the injury to SSR. The claimant's appeal against J's mother was allowed. No case was brought against J's father who was named but not in the vicinity at the time.

Comment

This case will lend some support to claimants who allege that there has been a lack of supervision of children leading to injury. Here it was sensibly determined than neither Bosworth nor J's parents were required to constantly monitor the children on the crazy golf course. However, with regards supervision, Mrs Justice Whipple went further than the Court of Appeal in Harris v Perry [2008], finding that if constant surveillance of children participating in such boisterous potentially risky activities is not required then the need for clear safety instructions becomes more pressing.

Harris v Perry had marked a move away from a "cotton wool culture" which had prevented children from experiencing managed risk. That decision was welcomed by defendants and insurers alike and was followed in Cockbill v Riley [2013] in which the claimant, attending a house party at his friend's parents' house, dived into a paddling pool and suffered catastrophic injury. In that case the court, following Harris v Perry, found that the risk of diving into the paddling pool was obvious and the defendant was not under a duty to give an instruction not to jump or dive into the pool.

In Bosworth, it was found that the failure to provide clear safety instructions to the children not to swing the golf club was a breach of J's mother's duty of care. This case might be thought of as a step back from both Harris and Cockbill and reminds us that it is can be a struggle for defendants in cases involving children who have sustained serious injuries which invariably illicit the sympathy of the court. 

On the other hand, there was a clear risk on appeal that where Bosworth had been found liable for lack of warnings, so J's mother could be found liable on the same basis and so it proved. The risk to her arose as a result of a combination of her knowledge of J's potential behaviour, added to the fact that she chose to take herself away from the immediate vicinity of the children as they played the game. These ingredients may not be present in future claims.

Contact

For further information, please contact Lucy Williams, Associate on 0161 603 5197 or at lucy.williams@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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