Harris v Perry & Ors [2008] EWHC 990 (QB)

[2008] EWHC 990 (QB)Case No TLQ/07/1192
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2008
Before
MR JUSTICE DAVID STEEL
Between
SAMUEL DAVID HARRISClaimant1) TIMOTHY PERRYDefendants2) CATHERINE PERRYDefendant3) DAVID HARRISDefendant
Susan Rodway QC (instructed by Julie Reynolds Solicitors) for ClaimantGraham Eklund QC (instructed by Keoghs LLP) for First & Second DefendantsRohan Pershad (instructed by Greenwoods Solicitors) for Third DefendantHearing Hearing dates: 22- 24 April 2008
Judgment

Introduction

[1]The claimant is a minor who was born in June 1994. He sues by his mother and litigation friend Janet Harris.[2]The first and second defendants, the Perry’s, are husband and wife. The Perry’s have triplets. To celebrate the triplets’10th birthday, they organised a party on 10 September 2005. As part of the celebration they hired both a bouncy castle and bungee run and erected them behind their house on a playing field which was in effect open to the public.[3]On the same day the third defendant Mr Harris had organised one of his regular football training sessions for youngsters on the same playing field. The claimant, who was 11 years old at the time, was one of 15 or so boys of a similar age attending the training session.[4]After the football session was over at about 12.00 noon, the claimant went onto the bouncy castle. While using the bouncy castle the claimant was seriously injured by reason of a collision with another boy who was doing a somersault using the equipment and whose heel struck the claimant a severe blow on the head.[5]The claim form alleging negligence on the part of the Perry’s was issued in May 2007. In due course the claimant’s father was joined initially as a third party and later as a third defendant.

Background

[6]The football session was attended by some of the parents of the boys concerned. One of the parents who had come along was a Mrs. Clayton. Her son was called Beau and he had a friend in tow called Luke. Mrs. Clayton had also brought along her daughter Liberty.[7]During the session, Mrs. Perry who was in attendance on the bouncy castle invited Liberty to come and play on it. With her mother’s permission, Liberty accepted the offer and went off to join two of the triplets and a friend of their’s who was somewhat older called Sammy Pring, all of whom were on the castle from time to time. At the end of the football session Beau and Luke predictably went over to join Liberty. In fact, with Mrs Perry’s leave, they chose to try out the bungee run.[8]The claimant also had a friend in tow. He was called Simon Spicer. As Mr. Harris began clearing up the football equipment with Mrs. Clayton’s help, the two boys asked Mr. Harris whether they could go on the bouncy castle. Mr. Harris responded by saying that that was not possible because it was obviously a private party and gave them a football to carry on kicking round with.[9]Nonetheless the claimant and his friend made their way over to the bouncy castle. When they got there, Mrs. Perry was in the vicinity of the bungee run strapping in either Beau or Luke. It is common ground that they asked Mrs. Perry whether they could join in. The claimant’s case is that Mrs. Perry was agreeable. Mrs. Perry maintains that she refused permission.[10]In any event the two boys (although Mrs. Perry can only remember the claimant) went on towards the bouncy castle, removed their football boots and climbed on board. Within a short time the accident happened. It would appear that Simon Spicer did a flip or a somersault. The claimant then did likewise but, before he had got up again, Sammy Pring - coming from the other side of the castle - also somersaulted and, as he did so, his heel struck the claimant on the forehead as he came down.

Permission

[11]As is apparent, the primary issue of fact is whether Mrs. Perry gave permission for the claimant to use the bouncy castle. It is always difficult to determine such issues where events have occurred several years ago in circumstances which do not call for any detailed recollection of a casual oral exchange. That said I find that it is probable that Mrs. Perry did give permission.[12]My reasons are as follows: i) There was no apparent reason for refusing permission. Liberty had been specifically invited over. Beau and Luke were equally beneficiaries of Mrs. Perry’s good will. ii) Mrs. Perry’s explanation of this was twofold. First she suggested that it was attributable to the fact that she had not checked that it was all right with Mr. Harris. But in fact no attempt was made to obtain the permission of Mrs Clayton with regard to Beau or Luke using the bungee run. Second she suggested that because she was not in the optimum position to keep a watchful eye on the bouncy castle. This was a fairly significant comment since it applied with equal force to the others already using the bouncy castle. iii) But more to the point for present purposes, given the fact that the two boys carried on past Mrs. Perry towards the bouncy castle, it would have been immediately apparent to her that they were not paying any attention to her refusal (if made). The failure to repeat the instruction, let alone enforce it then or at any time, is difficult to reconcile with her case. iv) Mrs. Perry has no recollection of Simon accompanying the claimant. But he clearly was there and went on the castle. He confirmed in his oral evidence that Mrs. Perry had not told the two of them “not to go on it”: his evidence was clear and convincing. v) Very notably, neither in the immediate aftermath of the accident nor in the later telephone conversations with Mrs. Clayton, did Mrs. Perry make any mention of any such refusal.

Duty of care

[13]It was accepted on behalf of the Perry’s that, in the event I rejected the evidence that the claimant was refused permission to use the castle, they owed a duty of care to him. The main thrust of the claimant’s case on breach of that duty of care was threefold: i) failure to maintain continuous supervision of those using the castle; ii) failure to forbid children using the bouncy castle from doing flips and somersaults. iii) failure to ensure that only children of a similar size and weight played on the bouncy castle at the same time;[14]In support of the claimant’s case on the standard of care involved, special emphasis was placed on the terms of the hire contract which contained this recommendation:
“FOR YOUR INFORMATION, SAFETY AND ENJOYMENT WE RECOMMEND THE FOLLOWING: Ensure that the equipment is supervised at all times by a responsible person and boisterous behaviour is stopped. Do not allow anyone to sit on the sides, climb, swing or hang from the walls and beams of inflatables unless specifically designed so. Do not exceed the manufacturers recommended age of person to use the equipment and never exceed the maximum number recommended by the manufacturer. No mix of children of different sizes, or with adults, on equipment unless specifically designed so.”
[15]Two other documents were available on the hire company’s website although they were not seen by the Perry’s. Whilst I do not hold that they should have unearthed them, their content is instructive. The first was a Health & Safety Information Sheet which included the following:- “17. The operator and attendants should watch the activity on the inflatable constantly. They should use a whistle or other signal and take action at the first sign of any misbehaviour.18. Somersaults and rough play should not be allowed.19. It is the operator’s responsibility to ensure that equipment is not overloaded with users.”[16]There were also some standard terms and conditions of hire provided by the the BIHA which contained the following clauses:
“7) A responsible adult must supervise the inflatable at all times. 8) Ensure that the inflatable is not overcrowded, and limit the numbers depending on age and size of children using it. If the children are colliding into each other then it is too crowded. 9) Try to avoid large children and small children from using the inflatable at the same time. Some require strict supervision.”
Attached were some BIHA safety cartoons stressing:
“Similar size children only to avoid accidents No somersaults, back or front flips An adult must supervise the children at all times” “Similar size children only to avoid accidents No somersaults, back or front flips An adult must supervise the children at all times”

Supervision

[17]It was the underlying platform of the claimant’s case that the Perry’s were failing to maintain an appropriate level of supervision of the bouncy castle at the time when the claimant climbed on board and made use of it. For this purpose it was submitted that a constant watch was required. Use of the equipment manifestly brought risks in its train. Supervision was needed to ensure that any new users removed their shoes which would otherwise be a danger to the users and the equipment. More importantly, it was contended, continuous supervision was also necessary to police the way in which the equipment was used e.g. intervening as necessary to stop users sitting on the sides, hanging from the walls, or otherwise exposing themselves or others to the risk of physical injury.[18]It is of course true that that Mrs. Perry was in attendance throughout. But the difficulty in my judgment was that she had to supervise the use of two pieces of equipment at the same time, both of which in fact needed uninterrupted supervision. In short, it was not possible to maintain a permanent look-out on both sets of equipment, the more so where supervision of the bungee run might include monitoring and even helping users strap themselves in. During this process, the supervisor’s back would be to the bouncy castle: indeed this is why Mrs Perry did not see the incident or the run up to it.[19]I appreciate that neither Mrs Clayton nor Mr Harris were concerned about the level of supervision. But their appreciation of the situation was not accompanied by immediate responsibility for the conduct of the party, let alone with any knowledge of the recommendations made by the hirer. In the result, largely as a consequence of insufficient allowance being made for the demands of operating two items of equipment, I conclude that the level of supervision of the bouncy castle was inadequate. In my judgment the standard of supervision needed to be all the greater given that the users were not of an age to appreciate the significant risks involved

Somersaulting

[20]But nonetheless the claimant must establish that the absence of a continuous watch was causative of the accident. I did not understand it to be suggested that each user of the bouncy castle should have been told before using it not to attempt flips or somersaults, let alone that the Perry’s should have installed a notice to that effect.[21]There is no evidence to suggest that there had been any somersaulting or any unruly behaviour during the morning. Furthermore, whilst it is true that the incident was not observed by Mrs. Perry when her attention was diverted by one of the boys on the bungee run, it is clear that it all happened very quickly. The arrival of Simon and Sam led fairly quickly to their sequential somersault followed by Sammy Pring. In the event that she or Mr Perry had been watching, would it have made any difference?[22]The complaint was that no-one was in a position to intervene to stop the activity as soon as Simon could be seen to try a ‘flip’. Whilst it would have needed a fairly rapid response, it was Sammy Pring’s evidence that even if he had been merely told to be careful, he would have refrained. The probabilities of such effective intervention are enhanced by Pring’s warning “Look out: I’m going to do a somersault” which was not heard, let alone acted on. It follows that I find the shortfall in supervision was causative of the accident.

Relative Size

[23]I now turn to the matter of the marked disparity in age and more importantly size of Sammy Pring compared with the others using the bouncy castle and the claimant in particular. Mrs. Perry described Sammy Pring as a “gentle giant”. Indeed by the time he came to give evidence he was by any standards an enormously tall boy. He was three or four years older than the other children using the castle. More to the point, at the time of the accident, he was probably more than a foot taller and substantially heavier than all the others.[24]The risks of a damaging collision are manifestly enhanced by mixing children of different sizes on a bouncy castle. Avoidance of such a situation is at the forefront of all the various recommendations for safe use. I conclude that Sammy Pring should not have been allowed to use the bouncy castle at the same time as the younger and smaller children and that this too was causative of the accident.[25]For all these reason I hold that the claimant has made out his case against the Perrys.

Third party claim

[26]In the claim against Mr. Harris as a third party issued in July 2007 (adopted with suitable lack of enthusiasm by the claimant in joining his father as a defendant), it is contended by the Perrys that he failed to exercise proper control over the claimant in not preventing him from using the bouncy castle and/or in not providing suitable supervision and instruction for its safe use.[27]Originally the Perrys added a further plea to this effect:
“6.5 The Claimant had been diagnosed unbeknown to the Defendants with Asperger‘s Syndrome. The existence of this condition and its effect on behaviour were facts known to the Claimant’s father. The Claimant’s father owed a duty of care to the Claimant and other persons to take account of this condition and the effect it would have on the claimant’s behaviour, his response to instructions and on those around him. The Claimant’s father was in breach of that duty in failing to control the Claimant adequately or at all.”
Not perhaps surprisingly the Perrys were asked for further information about the relevance of Asperger’s Syndrome including the particular characteristics relied upon and how they were causative of the accident.[28]The answer dated January 2008 was in part as follows:
“(1) The Claimant was less disposed to acknowledge instructions and directions given to him, including instructions not to do things. The Claimant ignored the instructions given to him by Mrs Perry that he was not to go onto the bouncy castle. Had the Third Party taken account of the Claimant’s behavioural traits, he would or should have prevented the Claimant from going to the bouncy castle and/or should have attended the bouncy castle himself to supervise the Claimant. (2) ….. The best information the Defendants can give presently are that the Claimant’s behavioural traits which resulted in, or some of which resulted in a diagnosis of Aspergers Syndrome, included him being disruptive, being easily distracted, having difficulty in following instructions or refusing to follow instruction, difficulties listening to learn or accept instructions and difficulties in accepting being told “No”. ”
[29]Leave to call expert evidence in relation to Aspergers syndrome was granted by the master but not until very late in the run-up to the trial. By the time the trial commenced the experts had not met. This was most unsatisfactory. In particular the second day of the trial had to be devoted almost completely to providing time for such a meeting.[30]Furthermore the meeting remained somewhat unstructured as the experts had not been told what the issues were that they should focus on. In particular, it was wholly obscure as to how some of the pleaded characteristics of the syndrome (such as being disruptive or easily distracted) had any bearing on the case.[31]It emerged that the main theme to the alleged relevance of Asperger’s Syndrome was the suggestion that the claimant was less disposed to follow instructions than a child without the syndrome. This in turn was said to be significant in two respects: i) First it was submitted that the claimant’s father instructed the claimant not to use the bouncy castle and should have followed that instruction up to ensure it was obeyed. ii) Second it was submitted in the alternative that the claimant’s father should have exercised direct control over the claimant in which case Mrs. Perry’s refusal to allow the claimant on the bouncy castle would have been heeded.[32]The trouble with these two points was that they would have failed on the facts. In particular it is quite clear from the evidence that the claimant’s father did not seek to prohibit the claimant from using the bouncy castle. He merely told him that he could not use it because it was “private”. It was no part of his instruction that he should not seek permission to use it or not use it even if granted permission. As Mr. Harris said in one of his statements:
“I would have sought consent from the person supposedly supervising and gone on the castle if allowed. In other words I would have acted in exactly the same way as Sam and Simon.”
Further, as I have already held, Mrs. Perry in turn did not prohibit Sam and Simon from using the castle: to the contrary she expressed agreement.[33]As regards the suggested added need for direct supervision, the Asperger’s Syndrome aspect added nothing. To the contrary it was clear that at school the Claimant (in contrast with a number of boys) was not regarded as requiring any specific supervision during breaks, lunch and so on.[34]Thus it was not surprising that at the end of the somewhat inconsequential second day of the trial the defendants withdrew the allegation. It should not have been made in the first place.[35]Once that plea had gone, however, the residue of the case against Mr Harris was left in some disarray. Despite this acceptance that no special precautions were needed in regard to the claimant, the defendants still sought to maintain that the claimant’s father was in part to blame for the accident. This was said to emerge from the continuing duty of a parent for a child.[36]But the position as Mr. Harris saw it was as follows: i) His ‘objection’ to his son using the castle was solely premised on the fact that it was part of a private party. ii) He was quite content for his son to go over to the attending adult some 50 metres away and for him to seek permission to use it. iii) He could see that it appeared to be properly monitored: an adult was in attendance together with an elder boy who, although gently bouncing in the corner, was presumably, not just a party guest. I accept that evidence and conclude that Mr Harris’ perception was reasonable and accordingly the claim against him both as defendant and as third party must fail.