I cannot agree with the ruling given by the House of Lords High Court in the 'bouncy castle case'. (note the excellent use of legal citation there. Hasn't practical legal research taught me a lot?)
What happened to the younger boy was a tragic accident. But accidents happen. When bad things happen, it is not always someone's fault, it's just life. The child will never be able to regain the life he once had, the parents will never get back the son they once had, no matter how much the damages are, they are insufficient. So the ruling doesn't help the family in question. It also has a negative impact on the rest of society. People like bouncy castles. People have fun on them. When you impose liability, there will be less bouncy castles, less fun. This is a harm in itself.
Recent complaints about 'cotton wool culture' have accused health and safety inspectors of overly erring on the side of caution in their interpretation of the law. For the last couple of years, the cry has been to 'let children be children, let them take risks'. The decision in this case suggests that it is not the conservatism of the health and safety inspectors who are at fault, but the entire legal system surrounding the issue.
EDIT: I got it wrong, it wasn't a House of Lords decision, it was the High Court and permission to appeal has been granted.
What happened to the younger boy was a tragic accident. But accidents happen. When bad things happen, it is not always someone's fault, it's just life. The child will never be able to regain the life he once had, the parents will never get back the son they once had, no matter how much the damages are, they are insufficient. So the ruling doesn't help the family in question. It also has a negative impact on the rest of society. People like bouncy castles. People have fun on them. When you impose liability, there will be less bouncy castles, less fun. This is a harm in itself.
Recent complaints about 'cotton wool culture' have accused health and safety inspectors of overly erring on the side of caution in their interpretation of the law. For the last couple of years, the cry has been to 'let children be children, let them take risks'. The decision in this case suggests that it is not the conservatism of the health and safety inspectors who are at fault, but the entire legal system surrounding the issue.
EDIT: I got it wrong, it wasn't a House of Lords decision, it was the High Court and permission to appeal has been granted.
11 comments:
Bonkers decision. I don't accept that reasonable bouncy castle practise would mean seperating 11 year olds and 15 year olds, unless they were actually fighting each other. Also, the same event could have occurred with children of a closer age, anyway. I don't think that the accident could have been prevented through a reasonable level of care and attention so I don't see how it is negliagence. Caveat: I'm not a lawyer.
Al M
The lack of reasonable care came in letting difference age/sized children on the bouncy castle in the first place, I think would be their reasoning.
I could see a greater degre of commonsense in their reasoning if the age difference had been, say, toddlers and older teens. But certainly children who are usually considered to be in the same 'age bracket'... Crazy crazy crazy.
That aside, it is possible to be liable in tort - especially health and safety law - even if there was nothing you could have done to stop the accident from occuring - "strict liability".
Can I have an example of that? I'm intregued.
For example:
Royal Mail keep bikes for their postmen to use and regularly maintain, inspect and repair them far beyod what would merely be necessary for it to be 'reasonable'. If a bike is even slightly broken or dangerous, it is taken away, so only bikes which are in full working order may be used. A postman was on his rounds one day and was using a RM bike (ie: equipment provided by his employer). It was a bike with a ful inspection record, there was no way that anyone at all could have known there was a fault with it. The bike breaks in some way whilst the postman is on his round (I can't remember the exact detail) and the postman suffers personal injury.
The postman was entitled to sue his employer because they provided dfective equipment even though they could not have known it was defective and were doing everything possible to prevent defective equipment being used.
Good stuff, thanks. Still can't get over the £1m payout for the castle, I wonder if there's anything we don't know about that would explain it, like there being a massive difference in skills between the barristers or anything...
I can't find the case at the moment or I would have been able to help you there!
I stand corrected on this one. I thought it was a HL case, it looks like it was only in the High Court.
Well, let's hope the appeal works.
I never liked these stupid bouncy castles. I remember the first time I got on it, when I was little, someone bumped into me really badly... Ban them! :)
Andropov,
You should have sued.... :)
Al, the £1m is largely to cover the fact that the child will need additional care for the rest of his life. It's not just general damages for pain, suffering and loss of amenity.
I used to hire castles for a living and paid my liability insurance premiums for such an event in the same way a plumber does. Lets be fair in this ever increasing world of litigation any business that does not have liability insuarance should not be in business. When hiring have some simple ground rules about use and let the kids enjoy themselves.
Thers a great site i have used before called BIHA for any one thinking of setting up a hire business which offer some great advice and a link to a company i used for the insurance.
Public Liability Insurance
Steve,
I don't disagree that businesses should have to carry insurance. In fact, I believe they are legally obligated to do so.
Where I question they judgement is in the fact that the parents who hired the bouncy castle were found to be negligent. We would expect, say, the Early Learning Centre to carry insurance to cover defective paddling pools. I think it is a bit steep to say that every single person who buys one should be covered in case anyone who uses their pool is injured.
Had the parents in this case been charging for the use of the bouncy castle, I could agree with the decision much more. To me, however, the line is the commercial environment. Where someone is acting for profit, it is right and proper that they should be insured against loss and damage arising out of their actions. Where people are acting in a private setting, I find it much more difficult to justify that line.
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