Mullin v Richards

Facts

Two girls aged fifteen, Mullin and Richards, were at school and were fencing with plastic rulers. One ruler snapped and a piece of plastic entered Mullin's eye, causing her to lose the sight of that eye. She sued Richards in negligence. There was no evidence that such games were regarded as dangerous or had been prohibited.

History

The trial judge found Richards liable in negligence, and she appealed to the Court of Appeal.

Issue

What standard of care applies to a child defendant, and whether, applying that standard, Richards was negligent in the way she played with the ruler.

Held

Appeal allowed. The claimant had not shown that an ordinary fifteen-year-old would have appreciated the risk of injury, so Richards was not negligent.

Ratio

• The standard of care required of a child is that of an ordinarily prudent and reasonable child of the same age, not the standard of a reasonable adult.
• To establish negligence the claimant must show that an ordinary child of that age would have appreciated the risk of the harm that occurred, and where the damage was not foreseeable in that sense, there is no breach.

The judgments

Key reasoning

• Children are not expected to show the foresight or judgment of an adult, and it would be unfair to measure a child's conduct against a standard she cannot yet be expected to meet.
• The standard remains objective, because it is the standard of an ordinary child of that age and not of this particular child with her own level of maturity.
• Playing with rulers was common and there was no evidence of known danger, so an ordinary fifteen-year-old would not have anticipated the risk, and there was no breach of duty.

Where it fits in the module

In the FHS tort course, Mullin v Richards sits among the cases on how the standard of care adjusts for the characteristics of the defendant, in contrast with the rule that an adult is held to a uniform standard regardless of personal incapacity. The Social Action, Responsibility and Heroism Act 2015 invites the court to consider the context in which a defendant acted when determining the standard, and Mullin shows an existing common law accommodation for youth. It should be read with Orchard v Lee [2009] EWCA Civ 295, which applied Mullin to a thirteen-year-old playing a game. Tutorial questions concern whether the age-related standard is a policy concession to children or a corollary of the principle that fault requires capacity.

Criticisms

• The age-based standard is a compromise between objectivity and fault: it is objective as to age but treats the child differently from adults, without a clear rationale for why age alone matters.
• Applying the ordinary child standard ignores the fact that victims suffer the same injury regardless of the defendant's age, so the burden falls on the injured child.
• The requirement that the ordinary child must have foreseen the risk is difficult to prove and tends to make claims against children almost impossible.
• The decision gives no guidance on how to treat children of differing abilities, and in practice the standard is hard to apply with consistency.