A claim for compensation after a playground accident has been rejected in a precedent-setting legal case in the Supreme Court of British Columbia. The civil claim was made against the municipality of Saanich, following an accident during a game of ‘grounders’ (a chase game played on and around fixed play equipment that my daughter and her London friends would know better as ‘off-ground touch’).
The accident happened in 2009 when the claimant, Rebecca Thompson, was eleven years old and had been attending a day camp during the summer holidays. Revealingly, the venue for the day camp was Gordon Head Middle School which, during term-time, had banned the playing of grounders.
The judgement was made in September last year. While no-one wants to see children hurt, the fact that the case was dismissed shows that the courts recognise that sometimes, accidents happen and no-one is to blame. (There are no details about the severity of the accident other than that it was a head injury.)
The published Reasons for Judgement make compelling – and ultimately reassuring – reading for anyone who is looking for a reasoned and proportionate response to the episode.
The judge, the Honourable Justice Baird, argued that there is ‘a small degree of risk’ in such games, but that they are ‘commonly played by children, who enjoy them … because they are exciting and fun.’ He concludes that the risk is ‘sufficiently remote that to permit children to play them is not unreasonable’.
“I was told that the District takes a more robust approach to children’s play. Its programs encourage physical outdoor activity. Risk-taking is encouraged within reasonable limits on the basis that children who never hazard a chance are unlikely to develop properly either physically or emotionally. The District has adopted the sort of thinking expressed in […] the 2015 ParticipACTION Report Card on Physical Activity For Children and Youth.”
The ParticipACTION statement, promoted with the strapline “the biggest risk is keeping kids inside”, received widespread media coverage in Canada and around the world. It was influenced and inspired by the UK’s Play Safety Forum statement and guidance (as one of its authors, Mariana Brussoni, confirmed to me in Toronto a couple of weeks ago). Hence it is not unreasonable to see resonances of the PSF’s work, which started back at the turn of the millennium, in this precedent-setting case.
Overall, the judgement could be interpreted as taking the form of a risk benefit analysis, with the courts in effect weighing up of risks of allowing such games against the benefits.
The decision sets a legal precedent only in British Columbia, and what is more its full legal significance is a subject for more detailed discussion than is possible here. That said, the decision is to my knowledge one of the few examples (perhaps the only one) where a child playground accident case has reached the highest court in a jurisdiction.
In my view it can and should be seen as an indication of a wider cultural debate on risk that is unfolding in many countries. It not only gives positive support to the argument that a balanced approach to risk in children’s play and learning is reasonable and defensible in law; it also suggests that the sun may be setting over what I called in my book No Fear the zero-risk mindset.
Given the significance of the judgement, which of course flies in the face of received wisdom about litigation culture, it is surprising that it has received so little media coverage. Indeed I could find no mention of it online: not even on a Canadian website of case law. [Update 22 Feb 2016: the case was in fact covered in the Vancouver Sun and Times Colonist].
While it is hard to be sure, my hunch is that the media is so locked into what we in the UK call an ‘elf and safety’ narrative that journalists and commentators struggle to accept any evidence to the contrary, even when it is as categorical as this.
Those of us who are committed to changing that narrative need to do what we can to share positive cases like this one when they do come around. Needless to say, I would be grateful for any help you can offer in getting the message out (especially if you are, or know, a journalist or blogger).
Acknowledgement: thanks to Mariana Brussoni for bringing the case to my attention.
Postscript 5 April 2017: A judge in Ireland has dismissed a civil claim in a similar case involving an accident which happened during a school playtime chase game. In his judgement, President of the Circuit Civil Court Mr Justice Raymond Groarke said that the child “was engaged in a game of chase pure and simple and, while it is most regrettable that she became unbalanced and fell, this was simply an old fashioned accident and I fail to see any liability on the part of the school for that accident.”