• In the case of Barnes v Scout Association [2010] EWCA Civ 1476, the question of whether the degree of risk entailed by an activity is unacceptably high when one party owes a duty of care to the other must be balanced against the social benefit that such an activity brings and decided on a case by case basis.

Facts of the Case

  • C was a member of the boy scouts, a group maintained by D.
  • During one meeting, a game was organised by an agent of D, which required participants to run across an enclosed room at high speeds.
  • The room was poorly lit as the participants ran, as the room’s main lights were switched off.
  • C fell and collided with a bench whilst playing this game, in an attempt to slow down before hitting a wall he had not seen in time. Through this, he injured his head and shoulder.
  • The county court judge ruled that the darkness of the room added a significant and unacceptable degree of risk that would not have been present had the main lights been switched on.
  • Such a degree of risk was held to amount to a breach of a duty to take reasonable care owed by D to C and so D was held liable for negligence.
  • D appealed on the grounds that the risk of collision and subsequent injury existed within the game even with the main lights on, and so if this form of the game was regarded as having an acceptable level of risk, the same should be said of the low-light version.
  • D also contended that the judge had failed to properly take the social benefits of the activity into account.

Issues in Barnes v Scout Association [2010] EWCA CIV 1476

  • Did playing a potentially risky game in the dark significantly elevate the risks of injury to an unacceptable level?
  • To what extent should the social benefit of an activity impact the level of risk deemed acceptable when one party owes a duty of care to the other?

Held by Court of Appeal

  • Appeal dismissed.

Smith LJ

  • Agreed with Lord Justice Jackson’s reasoning as to the causation of the injury.

“That cannot mean that any scouting activity is acceptable just because scouting is a very good thing. The social value of the particular activity must be taken into account...” para 46

  • The game itself had some social benefits for the children, allowing them to exercise and interact with one another, as well as increasing their enjoyment of the overall scout club experience, which had its own educational and health benefits in itself.
  • However, the darkness of the room merely added an element of excitement to the game, rather than any tangible benefit to the children. There were neither social nor educational benefits.
  • In this way, the increased risk of injury it directly led to is unjustified.

Jackson LJ (Dissenting)

It is plainly correct that the lack of illumination increased the risks of the game on the night in question and that this was a material factor in the occurrence of the claimant’s accident.” para 26

  • C would have likely become aware of the wall earlier, had the main lights been switched on. Consequently, he would not necessarily have suffered the same injury by the same cause, had D’s agent not decided to reduce the light levels of the room. Therefore, playing the game in the dark specifically did significantly increase the risk of injury to C.

 “It is not the function of the law of tort to eliminate every iota of risk or to stamp out socially desirable activities.” para 34

  • Many recreational activities necessitate a degree of risk which is deemed acceptable, as such activities create a social benefit. The boy scouts group creates obvious social benefits, through healthy recreational activities, sports and training opportunities for young people.
  • These benefits are not outweighed by the potential for risk of injury during the game in this case, as the game had far more supervision and structure than any typical game children often come up with themselves to play in the dark. Such a risk created by a game in the dark should be taken as a normal part of an exciting range of activities by the boy scout group.