|The Case of Orchard v Lee
 EWCA Civ 295
“13 year old boys will be 13 year old boys who will play tag. They will run backwards and they will taunt each other. If that is what they are doing and they are not breaking any rules they should not be held liable in negligence. Parents and schools are there to control children and it would be a retrograde step to visit liability on a 13 year old for simply playing a game in the area where he was allowed to do so.”Waller LJ
A thirteen and three-quarters year old boy (SL) was playing tag with another thirteen and a half year old boy (LR). They were playing in the courtyard and part of a walkway which was the social area for their age group when, running backwards and taunting LR, SL ran into the appellant who was working as a lunchtime assistant supervisor at the school. The back of his head came into contact with the appellant’s cheek and although at first any injury seemed slight it developed and her injuries were quite serious.
There were no school rules prohibiting running in the walkway; a point noted by the trial judge His Honour Judge Iain Hughes. The appellant brought proceedings naming SL, LR and the School as defendants. No proceedings were ever in fact commenced against the school and the matter proceeded to trial before His Honour Judge Iain Hughes QC with the only defendants, the two boys.
In some respects it is surprising the case went on appeal. The Court of Appeal upheld the trial judge’s decision – providing some reassurance to insurers and potential child defendants precocious enough to have a good knowledge of the principles of the law of negligence.
His Honour Judge Iain Hale stated the law in this way: “… Following the guidance of the Court of Appeal in Mullin v Richards  1 WLR 1304 , I am satisfied that the test is whether an ordinarily prudent and reasonable 13 year old schoolboy in each defendant’s situation would have realised that his actions gave rise to a risk of injury.”
Lord Justice Waller stated that “The primary question should be whether the conduct of the child was culpable, namely, whether it had fallen below the standard that should objectively be expected of child of that age.
Lord Justice Aiken, agreeing that the appeal should be dismissed stated ” As Waller LJ has stated, S owed the appellant a duty of care. The injuries were directly caused by the incident and there is no question of them being too remote to be recoverable if an action in negligence were otherwise successful. Therefore the only question for the judge and this court must be whether the conduct of S, as a 13 year old boy, fell below the standard to be expected of a reasonable 13 year old boy in the circumstances in which S found himself that afternoon, so as to constitute negligent behaviour.”
Stating the general position in negligence cases, Aiken LJ went on to state ” The question of whether a person has acted negligently is not answered simply by analysing what he did or did not do in the circumstances that prevailed at the time in question and then testing it against an objective standard of “reasonable behaviour”. Before holding that a person has acted negligently so as to be liable in an action for negligence, the court must be satisfied that a reasonable person in the position of the defendant (i.e. the person who caused the incident) would contemplate that injury is likely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be a sufficient probability of injury to lead a reasonable person (in the position of the defendant) to anticipate it. See in particular the speech of Lord Porter in Bolton v Stone  AC 850 at 858. “
The appeal was dismissed.
It would appear that Lord Justice Waller is being kept busy by the children of England. In Palmer v Cornwall County Council  EWCA Civ 456, Waller LJ ruled that a 14 year-old boy, hit in the eye during lunch break by a rock intended for a seagull, can sue Cornwall County Council.
Waller LJ stated: “It seems that one of the year group had placed some food on the ground to tempt seagulls to swoop down so that he could throw stones or rocks at them. In throwing one such rock he accidentally hit the appellant in the eye.”
The facts revealed that only two dinner ladies were supervising 300 pupils. Waller LJ described as “perverse” the recorder’s finding that the older children, in Years nine and ten, were adequately supervised. “Certainly to ask one supervisor to supervise well over 150 year seven and eight pupils was quite inappropriate and, since that led to that one supervisor only being able to glance occasionally at years nine and ten, that left those age groups effectively unsupervised.”
The children of England seem to be a force to be reckoned with in Tort cases, let alone hoodies with knives riding biciycles on the pavements, terrorising pedestrians and shoppers in leafy West London. All is not lost for those who wish to sue because of the activities of children. While Orchards v Lee may place a hurdle in the way of suing the child, Palmer v Cornwall County Council confirms that an adult or other legal entity can always pick up the bill if the facts fall within current law on negligence.