Blake v Galloway [2004] 3 All ER 315 Court of Appeal

The claimant, a 15 year old boy, was out with four of his friends including the defendant. The boys started throwing pieces of bark chippings and twigs at each other. The claimant did not join in at first but then threw a piece of bark chipping at the defendant hitting him in the leg. The defendant picked it up and threw it back at the claimant. The piece of bark struck the claimant's eye resulting in serious injury. The claimant brought an action contending that the injury was caused by the battery and or negligence of the defendant. The defendant raised volenti non fit injuria. The trial judge rejected the defence of volenti but held that the damages should be reduced by 50% under the Law Reform (Contributory Negligence) Act 1945. The defendant appealed contending that there was no breach of duty and that the judge was wrong to reject the defence of volenti.

Held:

Appeal allowed. In the context of 'horseplay' there is a breach of the duty of care only where the defendant's conduct amounts to recklessness or a very high degree of carelessness. The defendant had consented to the risk of injury occurring within the conventions and understanding of the game.

"If the defendant in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the claimant, or deliberately aimed the piece of bark at the claimant's head, then there might have been a breach of the duty of care. But what happened here was, at its highest, "an error of judgment or lapse of skill" (to quote from Diplock LJ), and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the defendant's conduct came nowhere near recklessness or a very high degree of carelessness."

The game was played on the basis that the objects were thrown at no particular part of the body. It follows that an object thrown in the general direction of a participant, without negligence and without intent to cause injury, but which happened to hit him in the face, was being thrown in accordance with the understandings and conventions of the game, and in a manner to which the participants had consented.

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