Mullin v. Richards and Another
COURT OF APPEAL CIVIL DIVISON
BUTLER –SLOSS HUTCHISON LJJ AND SIR JOHN VINELOTT
6 NOVEMBER 1997
Negligence – Duty to take care – Foreseeable harm –Child – Test of foresee ability -15-year – old
plaintiff injured during game with defendant of same age at school – Game not considered
dangerous or prohibited by school authorities – Whether accident foreseeable to 15-yeae-old child –
Whether defendant negligent.
M and R two 15-year-old-schoolgirls were fencing with plastic rulers during a class when one of
the rulers snapped and fragment of plastic entered Ms right eye causing her to lose all useful
sight in that eye. M brought proceedings for negligence against R and the local education
authority. The judge dismissed the claim against the education authority but found that that both M
and R had been guilty of negligence of which Ms injury was the foreseeable result and
accordingly that Ms claim against R succeeded subject to a reduction of 50% for contributory
negligence. R appealed contending. Inter alia that the judge had erred when considering foresee
ability by take account of the fact that R was not an adult.
Held – Although the test of foresee ability in negligence was an objective one where the defendant
was a child the question for the judge was not whether the actions of the defendant were such as
an ordinary prudent and reasonable adult in the defendants situation would have realized gave risk
to a risk of injury but whether an ordinarily prudent and reasonable child of the same age as the
defendant in the defendants situation would have realised as much. Since the judge in his
judgment had referred to M and Rs age it followed that he had had in mind the correct
principles and had approached the matter in the correct way. However there was insufficient
evidence to justify his finding that the accident was foreseeable since there was no evidence as
to the propensity or otherwise of such rulers to break or any history of their having done so
nor that the practice of playing with rulers was banned or even frowned on in the school nor
that either of the girls had used excessive or inappropriate violence. What had taken place was
nothing more that a schoolgirls game which was commonplace n the school and there no
justification for attributing to the participants the foresight of any significant risk of the likelihood
of injury. The appeal would therefore be allowed and judgment entered for R (see p 924 e to j p
926 c to e j p 927 b to j and p 928 a to j post).