Case No: B3/2010/0264

Neutral Citation Number: [2010] EWCA Civ 1476

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
HHJ WORSTER
8BM09731
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21/12/2010
Before :
LORD JUSTICE WARD
LADY JUSTICE SMITH
and
LORD JUSTICE JACKSON
--------------------Between :
THE SCOUT ASSOCIATION
- and MARK ADAM BARNES
--------------------(Transcript of the Handed Down Judgment of
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Appellant
Respondent

Mr. Patrick Field QC and Mr. David Boyle (instructed by Kennedys Law LLP) for the
Appellant
Mr. Bruce Silvester (instructed by Irwin Mitchell Solicitors) for the Respondent
Hearing date: Thursday 7th October 2010
---------------------

Judgmen

tLord Justice Jackson :

1.This judgment is in five parts, namely;
Part 1. Introduction
Part 2. The Facts
Part 3. The Present Proceedings
Part 4. The Appeal
Part 5. Conclusion
Part 1. Introduction
2. This is an appeal against the decision of Judge Worster in the Birmingham County
Court dated 15th January 2010, holding the Scout Association liable to a young man
who was injured at a scout meeting.
3. The claimant is an active young man, who was and is keen on sport and similar
activities. At the time of the accident he was aged 13 and a boy scout. He is now aged
23 and working as a transport coordinator. To his credit, the claimant had better things
to do with his time than attend the hearing of this appeal. I commend the claimants
positive approach to his injuries and the speed with which he returned to normal
activities.
4. The defendant is an association with 500,000 members aged between six and
eighteen. There are 7,500 scout troops and 100,000 voluntary scout leaders. The
scouting movement provides training, education and recreation for cubs and scouts
appropriate to their age. The Scouting Association makes a valuable contribution to
society.
5. After these introductory remarks I must now turn to the facts of the present case.
Part 2. The Facts
6. The claimant was born on the 15 th October 1987. At the age of 10 or 11 he became a
scout. He joined the 237th Castle Bromwich Scout Group. The claimant remained a
member of that scout group until June 2003 when he was aged 15 . That scout group
used to meet at a scout hall in Castle Bromwich.
7. Most unfortunately, on 14th February 2001, when the claimant was aged 13, he
suffered an accident at a scout meeting. The accident happened in this way. The scout
leader, Mr Stephen Newsome, decided that the boys would play a game called
Objects in the Dark. The procedure for this game was as follows. Ten small blocks
were placed in the centre of the hall. That was one less than the number of boys that
were present that evening. The eleven scouts present ran or jogged round the outside
of the hall. Half of the main lights were already turned off. At a given moment the
scout leader, or one of the two assistant leaders, would turn off the remainder of the
main lights. This was a signal for the boys to rush to the middle of the hall and each
grab a block. Whichever boy failed to grab a block would be eliminated. The next

round would then be played with ten boys and nine blocks. And so on. Eventually one
boy would be left and he was the winner. When the main lights were turned off, the
hall was not in pitch darkness. Light was supplied by emergency lighting as well as
certain other sources outside the hall.
8. On the evening in question during one of the rounds the claimant accidentally collided
with a bench by the east wall of the hall. The collision came about in this way. The
claimant was at the north west corner of the hall when the lights went out. He ran at
an angle towards the middle of the hall. He heard a block sliding away from the
middle of the hall. This block, as the judge found, had been accidentally kicked by
another competitor. The claimant changed direction and chased after that block. In his
pursuit the claimant was heading towards the north east corner of the hall. As he
approached the wall he failed to stop in time. In an attempt to slow down the claimant
dropped to the floor. His head and his left shoulder hit a bench which was standing
against the wall. This was a nasty accident. The scout leader, Mr Newsome, took the
claimant home. He told the claimants father that the claimant might have a bit of
concussion and so to keep an eye on him.
9. The claimant suffered considerable pain and discomfort following the accident.
Fortunately it was half term, so he did not have to go to school that week. Two days
after the accident the claimants father took him to the Accident and Emergency
Department at Birmingham Heartlands Hospital. The medical staff found tenderness
near the jaw, but no neurological deficit. They found full range of movement on his
left shoulder, but a bruise on the upper aspect of his arm.
10. The claimant recovered from the head injury within two weeks, but the injury to the
left shoulder persisted. The claimant was a keen rugby player. He resumed playing
rugby two weeks after the accident, but he found that the left shoulder was painful
when he tackled. The left shoulder continued to cause pain for some time and the
claimant required physiotherapy. He has now made almost a full recovery from the
injury.
11. The claimants accident did not deter him from scouting. He remained an active
member of the Castle Bromwich Scout Group for a further two years. It is clear from
all the evidence that the claimant was and is an active young man. He enjoyed the
sports, the camps, the holidays and the other activities which the scout group
provided.
12. The claimant and his parents did not intimate any claim against the Scout Association
during the period following the accident. However, on 4 th March 2004 the claimants
solicitors sent a letter of claim to the Scout Association alleging negligence and
claiming damages in respect of the accident on 14 th March 2001. The Scout
Association denied liability for any injuries which the claimant may have sustained.
This was not a case susceptible to compromise. Accordingly, the claimant commenced
the present proceedings.
Part 3. The Present Proceedings
13. By a claim form issued in the Birmingham County Court on 19 th August 2008 the
claimant claimed damages against the Scout Association for personal injuries suffered
in the accident on 14th February 2001. The claimant attributed that accident to

negligence on the part of the Castle Bromwich scout leader and assistant leaders, for
whom the defendant was vicariously responsible.
14. The Scout Association denied liability and, in the alternative, alleged contributory
negligence. The action was tried on the 14th and 15th January 2010 at the Birmingham
County Court. The claimant and his parents gave evidence in support of the claim.
Three witnesses were called on behalf of the defendant. They were the scout leader,
Steven Newsome, and the two assistant leaders, Garry Griffiths and Ian Hunt. The
judge gave a careful and well structured judgment on the afternoon of 15 th January.
He allowed the claimants claim and dismissed the defendants plea of contributory
negligence. The judge assessed general damages at 7,000 and special damages at
322.40.
15. In the course of his judgment the judge made the following findings of fact. At the
time of the accident there was some light in the hall. It was not possible to see people
clearly, but you could see their outlines. It was possible to see nearby objects. The
claimant could see the blocks when he was a couple of strides away from them. Both
of the emergency lights were on. The claimant was mistaken in his assertion that the
emergency light in the area of his accident was not working. When the claimant ran
towards the north east corner of the hall, chasing a block, he was looking down at the
floor. He did not see the wall until it loomed up close to him. The method of stopping
that the claimant adopted at that late stage was dropping to the floor. As a result both
his head and his shoulder bumped into the bench.
16. The judge noted that the game played on 14 th February 2001 resembled a game called
Grab described in a book of games for scouts. The difference was, however, that
Grab is played with the lights on, whereas Objects in the Dark is played with the
main lights off. The judge accepted Mr Newsomes evidence that turning the main
lights off added excitement to the game. He also considered that it added an
unacceptable degree of risk. At paragraph 27 the judge said:
The crux of the complaint is that the game presents an obvious
risk when played in the dark. The game not played in the dark
is played in an enclosed space. You have a number of boys
running around one can use more emotive words than running
but running is what they were doing in a competitive game.
When they rush towards the middle of the room they will
probably have their heads down and be concentrating more on
finding the block and winning the game than avoiding the boy
next to them. Some of the bigger ones may well feel they can
use their bulk to push the others out of the way. One can see
those risks, not I hope with the benefit of hindsight, but just by
looking at it in an objective way as a game. The removal of the
vast majority of the light in the hall, in my judgment, adds
significantly to the risks of the game. It also, I have little doubt,
adds significantly to the excitement.
17. The judge analysed the risks involved as follows at paragraphs 32 to 34 of his
judgment:

32. Secondly, I have to consider the degree of likelihood that

any harm might occur. In the dark, teenage and slightly younger
boys running around with their heads down, it is, I have to say,
a pretty obvious risk that they might run into each other,
particularly as they are all going to dash into the middle of the
hall to pick up these blocks. No doubt that is part of the fun of
the game, and one has to balance those two matters.
33. I also have to consider the potential severity of the harm. It
is difficult to do that. No doubt the vast majority of the bumps
would be little more than that. Mr Newsome described the sort
of steps he would take normally, with the little ones, a little
bit of gentle care was all that was needed and then they would
be up and off. No doubt with the bigger ones getting them to sit
down and stop for a couple of minutes and recover would also
be enough. No doubt Mark Barnes rugby player as he was
would be inclined just to get on with it.
34. But there is also the potential for some significant injury.
That risk arises if the game is played in the way in which it
should be, with everybody dashing towards the middle.
Because if it is dark they cannot see very well simple as that.
It also arises when something like the incident on 14 th February
happens and the wooden block shoots off towards the edge of
the hall. You are playing this game at a pace in an enclosed
area. It must be reasonably foreseeable that somebody will not
be able to stop or will not see the wall as quickly as one might
hope, and end up colliding with the bench or the wall or both,
injuring themselves more seriously.
18. The judge set out his conclusions at paragraph 36 as follows:
The issue which I have to decide on the evidence that I have
heard, on a balance of probabilities, is whether the Defendant
failed to take reasonable care for the safety of the Claimant. In
my judgment there is a breach of that duty here by playing this
game with the lights off in circumstances where a competitive
game involving 13-year old boys running around in an enclosed
space full pelt as it was put - heads down, is involved. I
have made that finding, as I hope is apparent, with a degree of
regret because I recognise that it may impinge upon the
activities of others in the future. But in all the circumstances it
seems to me there is a breach here; the game played in the dark
is dangerous dangerous to the extent that there is a breach of
the duty to take reasonable care. That breach of duty caused the
injury in this case, an injury for which I find the Defendant is
liable.
19. The defendant was aggrieved by the finding that its agents had been negligent. The
defendant was also concerned about the wider implications of the decision.
Accordingly it appeals to this court.

Part 4. The Appeal

20. Mr Patrick Field QC for the defendant advances three arguments which I would
summarise as follows:
i) Having found that the emergency light in the north east corner was on, the judge
ought to have held that the claimant should have seen the wall in time and
stopped. On the judges findings of fact, the reason why the claimant did not see
the wall must be because he was looking down at the block which he was chasing
along the floor.
ii) In considering whether the defendants agents exercised reasonable care, the judge
weighed up a number of factors. However, in that evaluation the judge failed to
take into account, or failed properly to take into account, (a) the social benefit of
the activity in question and (b) the consequences of finding that the game was
dangerous.
iii) The risks of collision on which the judge focused were present whether the game
was played in full light or with the main lights out. Since the judge did not regard
the game as dangerous if played in full light, he should not have regarded it as
dangerous in the circumstances of this case.
21. The first and third arguments are linked by a common theme. This theme is that the
lack of illumination upon which the judge focused did not contribute to the risks or
the accident which the claimant encountered. I shall therefore deal with these two
arguments together.
22. Any physical contest or contact sport carries with it risks. If a tort lawyer settles down
to enumerate those risks he will rapidly produce a lengthy and daunting list. In the
case of Grab one of the items on our notional list would read as follows:
One competitor may accidentally kick item towards wall.
Another competitor pursuing that item may be looking at it so
intently that he does not see the wall ahead until too late and
collides with the wall.
23. No-one suggests that the game of Grab is too dangerous to play. The risks which I
have just mentioned and many similar risks which would appear upon our notional list
are regarded as acceptable risks in order for the game to take place.
24. Mr Field submits that precisely the same risk exists in the game Objects in the Dark
and that is what caused the claimants accident. Mr Bruce Silvester for the claimant
resists that submission and contends that it is unrealistic. It is, Mr Silvester submits,
quite clear in the circumstances of this case and on the judges findings of fact that the
darkness increased the risk and played a material part in the occurrence of the
accident.
25. I cannot accept Mr Fields submission. It seems to me that the risk which is identified
above is bound to be greater in the game Objects in the Dark than in the game
Grab. It cannot be said that the claimant would necessarily have suffered the same
accident in the same way on 14th February 2001, if there had been full illumination.

26. I would therefore uphold the judges finding that the risks of the game were increased
by turning off the main light. I do, however, accept that lack of illumination was a
subsidiary cause rather than the main cause of this particular accident, having regard
to the judges findings as to how the accident occurred. The main cause of the
accident was that the claimant was looking down at the block, rather than looking
where he was going. Even so, however, it must be the case that the claimant would
have become aware of the east wall earlier if the lights had been on. It is plainly
correct that the lack of illumination increased the risks of the game on the night in
question and that this was a material factor in the occurrence of the claimants
accident.
27. I now turn to Mr Fields second argument. This is a powerful argument which has
given me much concern ever since I started to read into the case.
28. In support of this argument Mr Field places reliance on Tomlinson v Congleton
Borough Council [2003] UKHL 47; [2004] 1 AC 46. In that case a young man
suffered injury diving into a lake which was owned and maintained by the local
council. The House of Lords, reversing the Court of Appeals decision, held that the
claimant was the author of his own misfortune and dismissed the claim. In the course
of his speech Lord Hoffman said this at paragraph 34:
My Lords, the majority of the Court of Appeal appear to have
proceeded on the basis that if there was a foreseeable risk of
serious injury, the council was under a duty to do what was
necessary to prevent it. But this in my opinion is an oversimplification. Even in the case of the duty owed to a lawful
visitor under section 2(2) of the 1957 Act and even if the risk
had been attributable to the state of the premises rather than the
acts of Mr Tomlinson, the question of what amounts to such
care as in all the circumstances of the case is reasonable
depends upon assessing, as in the case of common law
negligence, not only the likelihood that someone may be
injured and the seriousness of the injury which may occur, but
also the social value of the activity which gives rise to the risk
and the cost of preventative measure. These factors have to be
balanced against each other.
29. In the present case the game played by the scouts did involve a degree of risk.
However, it was an established game which has been played by the Castle Bromwich
Scouts without mishap on many occasions both before and after 14 th February 2001.
The scout leader, aware of the full nature of the game, considered that it was not a
dangerous game and that it was appropriate for the scouts to play. Many physical
recreations involve a degree of risk. Rugby, cricket or skiing are just three examples.
The foreseeable risks involved are accepted, because recreations of this nature have a
recognised social value: see Bolton v Stone [1951] AC 850 and Tomlinson at
paragraphs 34 to 36.
30. Unfortunately, those authorities were not cited to the judge and therefore the principle
stated in Lord Hoffmans speech does not feature in his judgment. The judges
comments in his judgment about the social value of scouting are, essentially, by way
of background. When determining whether the defendants agents exercised

reasonable care, the judge focused upon the risks of the game and evaluated the
relevant factors without reference to the social value of the activity or the
consequence of his decision. Paragraph 36 of his judgment contains this telling
sentence:
I have made that finding, as I hope is apparent, with a degree
of regret because I recognise that it may impinge upon the
activities of others in the future.
When this sentence is read in context, it is not saying that the social value has been
taken into account in determining whether the defendant exercised reasonable care.
On the contrary, the judge has carried out his assessment of what constituted
reasonable care by reference to the traditional factors, namely likelihood of harm,
severity of harm, how the risk could be avoided and so forth. Having carried out that
balancing exercise, the judge notes the social consequences of his decision and regrets
them. If Lord Hoffmans speech in Tomlinson had been cited, I believe that the judge
would have come to the opposite conclusion.
31. In these circumstances, this court must carry out a re-evaluation of the relevant
factors. The social value of the scout movement is obvious. It provides training,
recreation and healthy activities for young people in their leisure time. Games are one
important part of scouting activities. Mr Newsome explained candidly in his evidence
why the main lights were switched off for this particular game. It made the game
more exciting and, in Mr Newsomes words, a lot of kids nowadays prefer more
excitement.
32. Obviously the risks of this particular game were increased by turning off the main
lights. But I do not see how it could possibly be said that these increased risks
outweighed the social benefits of the activity. Children and teenagers have played
games with an element of risk, including games in the dark, since time immemorial.
The game played by the claimant and his fellow scouts on 14 th February 2001 was
much safer than many games which children might play, if left to their own devices. It
was properly supervised by three experienced adults. It was structured. It was a game
which has been played on many occasions before and since that date without mishap.
It is the sort of activity which attracts young people to join or remain in the scouts. In
my view, it cannot possibly be said that there was a failure to exercise reasonable care
by the scout leader and the assistant leaders.
33. What happened to the claimant on 14th February 2001 was a most unfortunate
accident, from which happily he has made an almost full recovery. This does not give
rise to a claim for damages.
Part 5. Conclusion
34. It is the function of the law of tort to deter negligent conduct and to compensate those
who are the victims of such conduct. It is not the function of the law of tort to
eliminate every iota of risk or to stamp out socially desirable activities: see generally
The Philosophical Foundations of the Law of Tort (Ed D. Owen, Clarendon Press,
1995), chapter 11 The standards of care in negligence law. This principle is now
enshrined in section 1 of the Compensation Act 2006. That provision was not in force

at the time of the claimants accident. However, the principle has always been part of
the common law.
35. For the reasons set out in Part 4 above, in my view this appeal should be allowed and
the finding of breach of duty should be set aside.
36.

Lady Justice Smith:

37. I have read the judgment of Jackson LJ and gratefully adopt his exposition of the
facts. I agree with much of his reasoning and in particular with his general statement
about the function of the law of tort in his concluding section. I also agree with his
rejection of Mr Fields submissions in relation to causation. However, I have reached
the opposite conclusion from him as to the outcome of this appeal. I give my
reasons.
38. Jackson LJs reason for holding that the judge had fallen into error was that he had
failed to consider or to give appropriate weight to the social benefit of the kind of
activity in which the scout troop was engaged on the night of this accident. He
thought that the judge had fallen into this error because the cases of Bolton v Stone
and Tomlinson v Congleton Borough Council had not been cited to him. Had they
been, the judge would have reached a different conclusion.
39. The reason that I disagree is that I think that it is clear from the judgment that the
judge had very clearly in mind the well-established principle that the social value of
an activity is a relevant consideration. I accept of course that, when he evaluated the
risks and announced his conclusion, he did not expressly include that factor. However,
this was an ex tempore judgment (and in my respectful opinion a very good one) and I
do not think that the judge should be criticised for his failure to mention that factor if
it was clear from other passages of the judgment that he had the factor in mind. In my
view, it is clear from the judgment as a whole that he had it very much in mind.
40. At the beginning of his judgment, in paragraph 1, the judge said:
The Scout Association carries out important work. Its
operations are obviously for the benefit of a section of society.
Scout leaders give of their time for nothing to the benefit of
others, and I begin my judgment with that recognition of the
importance of what they do. It is no doubt something from
which all Scouts benefit and thus the rest of us too. Their work
helps with the rounding of character and the education of
younger people in the broader sense. It is important I remind
myself of that at the outset of this judgment.
41. At paragraph 12 of the judgment, the judge dealt with the cross-examination of the
Scout leaders and recorded that Mr Newsoms reason for playing the game in the dark
was because a lot of kids prefer more excitement these days than in the past.
A
little later he continued:
It is not suggested that the turning off of the lights is
something that adds an additional educative or instructive
element to the game; in the words of Mr Newsom, it adds to the

excitement and I am sure it does. Spice is the word that I

used in the course of the trial but excitement is the word that
Mr Newsom used so I will use that.
42. At paragraph 24, when the judge turned to consider whether there had been a breach
of duty, he recorded the submission of Mr Boyle, counsel for the Scout Association
as follows:
Mr Boyle has quite properly emphasised the importance of
this sort of activity not only in the Scouts but in life generally.
He submits that activities are a good thing. Life is not without
risk. Courts should not be too over-analytical about what is
being done or be too over-protective of those who freely
engage in this sort of activity, for the benefits greatly outweigh
the potential risks in general terms.
43. Immediately after that, he gave himself this general direction, as to which there is no
criticism:
25. It is a question of what is reasonable. It is not a question
of applying some sort of Health and Safety culture with the
benefit of hindsight. What I have to do as best as I am able to,
is put myself in the position of the objective assessor in
February 2001 looking at the position then, leaving out of
account whatever hindsight may tell me, and ask myself the
relevant questions from that perspective.
44. The judge then embarked on the assessment of the various relevant matters and I
accept that, to a large degree, they were based, as Jackson LJ says, on the traditional
factors of degree of risk and seriousness of injury and so on. However, he reminded
himself that the purpose of turning off the lights was only to add to the excitement
in other words it did not add any other value. He observed that turning off the lights
added to the foreseeable risk of injury and he explained why.
45. I interpose at this stage, almost in parenthesis, that in my view the judges evaluation
of the various relevant factors is exemplary. When that evaluation had been set out
and before reaching his conclusion, the judge said:
I am grateful to counsel on both sides for taking me through
the arguments as they have. I have listened to the evidence
given by the witnesses for the Defence. I have already indicated
my view of them as people (it was highly favourable) and the
importance of the role that they play.
46. In the next paragraph the judge expressed his conclusion that there had been a breach
of duty by playing the game in the dark. He added that he reached that conclusion
with regret because he recognised that it may impinge upon the activities of others in
the future.
47. Mr Fields submission, which Jackson LJ has accepted, was that in his evaluation, the
judge failed to take account of or failed to give sufficient weight to the social value of

the activity. Mr Field accepted that what had to be brought into account was the
social value of the particular activity, rather than the social value of scouting activities
as a whole. Everyone accepts, including the judge, that scouting activities are
valuable to society. Every one accepts, including the judge, that scouting activities
will often properly include an element of risk. However, that cannot mean that any
scouting activity, however risky, is acceptable just because scouting is a very good
thing. The social value of the particular activity must be taken into account in
assessing whether the activity was reasonably safe. It was common ground before the
judge that the game played in the light was reasonably safe, although plainly there
were some inherent risks. The judge held, as he was entitled to do, that playing in the
dark significantly increased those risks. It was also common ground that the game
had some social value; it was a good active competitive game to keep boys occupied
on long winter evenings. But, on the evidence, the judge was bound to form the view
that the particular justification for playing this game in the dark was only that it added
excitement. The darkness did not add any other social or educative value but it did
significantly increase the risk of injury. I think that the judges attitude towards social
value was clear from the passages I have quoted above. I think it is clear that he
thought that the added excitement of playing the game in the dark, which might well
encourage boys to attend scouts - a desirable objective -, did not justify the increased
foreseeable risk.
48. As I have said, this was an ex tempore judgment. If the judge had added a few words,
along those lines, when announcing his conclusion, it would not be open to Mr Field
to advance his criticism. In my view, the absence of those words, which can clearly be
inferred from what has gone before, should not serve to undermine his conclusion.
49. It is trite law that this court will not interfere with an evaluative judgment made by the
judge below unless he has taken an irrelevant matter into account, omitted to take a
relevant matter into account or has reached a conclusion which is plainly wrong. I do
not agree that the judge has failed to take account of such social value as he thought
was attached to playing this game in the dark as opposed to playing it in ordinary
lighting conditions. He just did not think that the increased social value amounted to
much. In my view, he was entitled to take that view and I would not interfere with his
judgment.
50. I repeat that I agree with all that Jackson LJ said in his concluding paragraphs. Of
course, the law of tort must not interfere with activities just because they carry some
risk. Of course, the law of tort must not stamp out socially desirable activities. But
whether the social benefit of an activity is such that the degree of risk it entails is
acceptable is a question of fact, degree and judgment, which must be decided on an
individual basis and not by a broad brush approach. That is what this judge did, and
in my view, his conclusion should be respected.
51.Lord Justice Ward: I have to confess that I have found it uncommonly difficult to
reach a confident judgment in this case. Here was a big strong thirteen year old lad,
well-used to rough and tumble, playing rugby with distinction for his county, ever
ready to take the bumps and the bruises, ever willingly to put his body on the line for
the thrill of his sport. For him, you get hurt, you get up, and you get on with it. He
brought the same enthusiasm and competitive instincts to his participation in his local
Scout troop. He was the least likely boy to need wrapping in cotton wool. So, is
awarding him damages for an injury suffered playing the game, Objects in the

Dark, not an example of an overprotective nanny state robbing youth of fun simply
because there was some risk involved in the exercise? Is this a decision which
emasculates those responsible for caring for our children and in so doing, enfeebles
the children themselves? Where do you draw the line? I have found that hard to
answer.
52.Judge Worster, in his admirable judgment, answered the question along traditional
lines. He identified the real question to be, Was there a breach of duty?, and
whether there has been a failure to take reasonable care. In gauging what is
reasonable, he asked, Why turn off the lights? pointing out that whilst it plainly
does add excitement, it also adds what is a perfectly foreseeable risk. He then
considered the degree of likelihood that any harm might occur and found it to be a
pretty obvious risk that they might run into each other. He also had to consider the
potential severity of the harm and found that there was potential for some significant
injury. It must be reasonably foreseeable that somebody will not be able to stop or
will not see the wall as quickly as one might hope, and end up colliding with the
bench or the wall or both, injuring themselves more seriously. He then directed his
attention to what precautions might be taken to minimise the risks. Since playing in
the dark lie(s) at the root of the risks in this case, the obvious precaution was not to
turn the lights off. So his conclusion was:
In my judgment there is a breach of that duty here by playing
this game with the lights off in circumstances where a
competitive game involving thirteen-year old boys running
around in an enclosed space full pelt as it was put heads
down, is involved. I have made that finding, as I hope is
apparent, with a degree of regret because I recognise that it may
impinge on the activities of others in the future but in all the
circumstances it seems to me there is a breach here; and the
game played in the dark is dangerous dangerous to the extent
that there is a breach of the duty to take reasonable care. That
breach of duty caused the injury in this case, an injury for
which I find the defendant is liable. (His emphasis).
So far, the reasoning seems to me to be unassailable.
53. The criticism that is made of this judgment is that the judge, through no fault of his,
did not expressly direct himself to Lord Hoffmanns criticism in Tomlinson v
Congleton Borough Council that the Court of Appeal, of which I was a member, had
failed to appreciate that:
the question of what amounts to such care as is in all the
circumstances of the case is reasonable depends upon
assessing not only the likelihood that someone may be
injured and the seriousness of the injury which may occur, but
also the social value of the activity which gives rise to the risk
and the cost of preventative measure. These factors have to be
balanced against each other.
54. In considering, therefore, whether the judge erred, I have examined his judgment to
see whether his innate legal instincts led him in truth to engage in the assessment

demanded by Lord Hoffmann. How, if at all, did Judge Worster balance the social
value of the activity giving rise to the risk and the cost of the preventative measure?
55. He clearly had the value of scouting in general well in mind. It occupies a place at the
forefront of his judgment:
1. The Scout Association carries out important work. Its
operations are obviously for the benefit of a section of society.
Scout leaders give their time for nothing for the benefit of
others, and I begin my judgment with the recognition of the
importance of what they do. It is no doubt something from
which all scouts benefit and thus the rest of us too. Their work
helps with the rounding of character and the education of
younger people in the broader sense. It is important that I
remind myself of that at the outset of this judgment.
The operation of the Scout Association includes playing games from which scouts
benefit and the rest of us too. So these games do have a social value which we must
recognise.
56. With regard to this particular game, the benefit was no more than the added
excitement of playing in the dark: there was no additional educative or instructive
element to the game as the judge found:
12. It is not suggested that the turning off of the lights is
something that adds an additional educative or instructive
element to the game; in the words of [the scout master], it adds
to the excitement and I am sure it does. Spice is the word that
I used in the course of the trial but excitement is the word that
[the scoutmaster] used so I will use that.
The scoutmaster had been asked why the grabbing of the blocks was done in the dark
and his answer was that: A lot of kids prefer more excitement these days than in the
past. So the particular social benefit here is the excitement which draws the boys
into the scouting movement.
57. In paragraph 24 we see the way the case was being put on behalf of the Scout
Association.
Mr Boyle has quite properly emphasised the importance of
this sort of activity not only in the scouts but in life generally.
He submits that activities are a good thing. Life is not without
risk. Courts should not be too over-analytical about what is
being done or be too over-protective of those who freely
engage in this sort of activity for the benefits greatly outweigh
the potential risks in general terms.
This seems close to the sort of analysis Lord Hoffmann demands. The judges answer
was:

25. It is a question of what is reasonable. It is not a question

of applying some sort of Health and Safety culture with the
benefit of hindsight. What I have to do as best as I am able to
is put myself in the position of the objective assessor in
February 2001 looking at the position then, leaving out of
account whatever hindsight may tell me, and ask myself the
relevant questions from that perspective.
58. In paragraph 27 he recognised the countervailing factors of harm against precaution
that must be balanced. He said:
The removal of the vast majority of the light in the hall, in my
judgment, adds significantly to the risks of the game. It also, I
have little doubt, adds significantly to the excitement.
The Associations own risk assessment saw the problem:
We seek to provide excitement but not danger, adventure but
not hazard.
59. Thus the judge reached his conclusion in paragraph 36 which I have already recited
above:
There was a breach of duty by playing the game with the
lights off because so playing the game was dangerous.
60. Those passages satisfy me that the judge did have well in mind the social value of this
game which was to add to the excitement and in that way enthuse the youngsters
looking for that added spice. But the spice also added risk and the cost of
prevention was simply not to turn the lights out. When in paragraph 32 of his
judgment the judge said, No doubt that is part of the fun of the game, and one has to
balance those two matters, he was recognising that part of the fun of the game was
playing in the dark but that involved a risk that harm might occur. In paragraph 35
he got to the heart of the matter, saying, It seems to me that it [playing in the dark]
does lie at the root of the risks in this case. In these passages the judge seems to me
to be engaging in the Tomlinson task of balancing the social value of the activity
giving rise to the risk and the cost of the preventative measures: more fun playing in
the dark but more risk; less fun and less risk playing with the lights on. Is the benefit
of added fun worth the added risk? He decided it was not worth it. Scouting would
not lose much of its value if the game was not to be played in the dark. That is how I
understand his thinking. If so, he has, in my judgment, not fallen into the trap we did
in Tomlinson.
61.

Conclusion
62. I read Jackson LJs judgment and was attracted by his powerful argument exonerating
the Scouting Association for playing this game. I have instinctive sympathy with that
view. Then I read Janet Smith LJs judgment and see the force of her conclusion. It
is, in my view, trite that a judgment of this sort is a value judgment where there is a
right answer and a wrong answer: it is not a question of an exercise of discretion
where there is a band of reasonable choice to be made. Nonetheless it is equally well

established that the Court of Appeal must have due regard to the judgment of the trial
judge who heard the whole case for he has a better feel for the whole than we, in the
Court of Appeal, can re-create by reading the transcripts. Here not only do I pay due
respect to the judges decision but upon analysis of it I also conclude that he has won
my respect and convinced me that he has applied the law properly to the facts and that
he has come to a conclusion which cannot be said to be wrong. In the result, I would
dismiss the appeal.