PI Brief Update

Editorial: Parenting and Personal Injury - Aidan Ellis, Temple Garden Chambers

27/04/17. Confronted by bad weather and overly energetic children, I recently gave in and took my family to an indoor soft play centre. Once inside, it transpired that many parents had had the same idea. It was full of adults sipping coffees whilst children swarmed and rampaged over the soft play equipment. I soon had the opportunity to take a closer look at the chaos because my daughter habitually gets stuck on the highest and furthest away section of soft play equipment. Carrying out a meaningful risk assessment must be almost impossible. Children are far too creative to use the equipment for the purpose for which it was designed; standing on the roof of the playhouse, climbing up the slide or trying to move the equipment must be hourly occurrences. And, as I tried to wriggle through a narrow tunnel, I reflected that the equipment has to withstand not only children, but adults climbing to the rescue as well.

Such attractions could easily be a magnet for personal injury claims, since the number of small children engaged in vigorous play must be conducive to a range of injuries. But there are surprisingly few reported cases. Perhaps they are settled quietly and confidentially. Or perhaps the Compensation Act 2006 has succeeded in making it easier to defend such claims. Soft play does encourage ‘desirable activities’ (thinking primarily of exercise not necessarily wet weather respite for parents) within the meaning of the Compensation Act 2006. Overly extensive liability would have a ‘deterrent effect’ on these small businesses. Most also seek to protect themselves by a range of waivers on entry, including the stipulation that parents are expected to supervise their children at all times.

Nevertheless, some claims would surely succeed. The collapse of a platform, for instance, would surely attract occupiers’ liability if nothing else. And there will always be more difficult cases. For instance, could the attraction be liable for injury caused to a toddler because older children were permitted to play in the under-3s section? It might be argued that a warning notice and a request for parental supervision discharges the venue’s duty of care. But, absent any effective restraint, it is surely foreseeable that older children would intrude and that they could, unintentionally, seriously injure a small child. In those circumstances, a soft play centre is not in the same position as a parent hiring a bouncy castle (cf Perry v Harris [2008] EWCA Civ 907). By its arrangement of the premises and its supervision, it is by no means clear that the Compensation Act would prevent a finding of breach of duty on appropriate facts.

Aidan Ellis
Temple Garden Chambers

Image: CC0 Public Domain