Reflection on court finding no negligence in injury at play claim

Attention has rightly been drawn to a recent British Columbia (Canada) Supreme Court Judgment that, whilst not serving as precedent in other jurisdictions, is both interesting and useful.  You can read the judgment here.

In brief, the civil law case – brought under British Columbia Occupiers Liability Act 1996 – focuses on a negligence claim against the District of Saanich by, at the time of the incident, an 11 year old child (represented by a litigation guardian) who was injured as the result of falling during a ‘tag’ game – known locally as ‘grounders’ – from one level of a play equipment’s platform to another.  The incident occurred during a day camp taking place on a school playground, though not a school project.  The day camp provision was supervised.

I recommend that those concerned with risk, liability, negligence and related issues in respect of play (and more widely, leisure and sports) read the judgment in its entirety.  It is not a long document, and the court’s line of thinking that led it to dismiss the negligence claim is clearly spelled out.  I was intrigued by one aspect of the judgment, and that’s what prompts me to write this piece.  But more of that anon.

In brief, the issue revolved around the duty of care owed to, in this case, the day camp users.  The duty of care, under the British Columbia Act,  requires an occupier to:

• ‘take care that in all the circumstances of the case is reasonable to see that a person…will be reasonably safe from harm’

• and ‘to protect others from an objectively unreasonable risk of harm.’[1]

Essentially, this was a case about what was reasonable in the circumstances, with the plaintiff arguing that the game of grounders was inherently unsafe and therefore should not be permitted; or not permitted in the particular circumstances that it was.

The District, on the other hand, argued that, taking account of the child’s age and experience the game was suitable and did not expose the child to ‘unreasonable risk of harm’.   The District also advanced evidence as to how common a game it was, and how low were injury rates associated with it.

The judgment clarifies that ‘the question is not whether the District employees, in permitting the game to be played, exposed the plaintiff to the possibility of any risk, however small, but whether they exposed her to unreasonable risk’.  The judge’s response: ‘I have concluded they did not’.

Earlier in the judgment reference is made to the District’s ‘more robust approach to children’s play’ and notices in particular that the District has adopted the thinking about risk articulated in The 2015 ParticipACTION Report Card on Physical For Children and Youth that concludes that long-term physical health and development should be valued as much as safety.

Reflection

In his discussion of the issues that the case raises, Mr Justice Baird  refers not only to the external evidence presented that demonstrates grounders are ‘commonly played…because they are exciting and fun’ but also, in addition, frames his remarks with reference to ‘…my own experiences as a child and a parent’ which confirm the popularity of games such as grounders.

An optimistic take on what must be for many a welcome judgment, is that the court was assisted in reaching its decision by being able to reference the ParticipAction document.  This can be thought of as a sort of proxy policy document which helped establish the parameters of what might be considered reasonable in the circumstances, in this case in respect of play.  This I think underscores the point many of us make, and is reflected in any number of documents – see, for example, Play Safety Forum – that having a formal policy about risk and play is an essential element in creating the context within which judgments about reasonableness  can be made.

The other aspect, the one that particularly resonates with me, was the judge’s reference to his own experience, both as child and as parent, as weighing with him in reaching his judgment.  It was only one aspect of what weighed with him,  but of sufficient significance to be referred to explicitly.

One could interpret the judgment as a proxy endorsement of two mutually compatible strategies for advancing the cause of risk in play: one, the need for clearly articulated policy; two, the need to connect with the everyday experiences of most adults who, of course, were once children, with many now parents.

Having said that, there is no getting away from the worry that the sort of experiential, direct knowledge the judge referred to feels often to be a diminishing resource as younger generations grow up leading more restricted, indoor lives.

Panglossian ship

The British Columbia court’s decision is to be welcomed, as is the articulation of its line of reasoning.  And of course we wish it to be the swallow that heralds the coming of  a wished-for Spring.  But for those inclined to board the Good Ship Pangloss prematurely, a cautionary note.

The case discussed was prompted by an injury arising from an activity that one would be hard put to describe as significantly risky.  And the judge’s reasoning drew attention to this: ‘I find there is nothing inherently dangerous about grounders…’; ‘…the risk of harm inherent in such games is sufficiently remote…’.

It is not possible to know how the court would have responded to, say, an injury arising out of a kid falling off an adventure playground American Swing; or a child falling from a tree in supervised provision.

Where we can, perhaps, be confident, or at least hopeful, is that the line of reasoning applied to this case has, in its structure and rationale, the potential to be useful if more widely applied.

[1] All quotes in this piece are taken from the court’s written judgment