Landmark appeal in bouncy castle brain injury case

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Mr & Mrs Perry hired a bouncy castle to celebrate their triplets’ 10th birthday party. Prior to the party beginning, Mr & Mrs Perry had allowed a next door neighbour, a child of 15, to play on the bouncy castle with two of their three triplets.

The claimant and a friend approached the inflatables that were situated on a public field. The claimant’s case was that he sought, and was provided with, permission by Mrs Perry to play on the bouncy castle. Mrs Perry’s case was that she saw the claimant approaching the bouncy castle and she issued an instruction for him not to get onto it. Mrs Perry then returned to attending to another child. However, the claimant proceeded to go onto the bouncy castle.

Mrs Perry was still attending to the user of the bungee run when a young boy on the bouncy castle performed a “flip”. This was very shortly followed by the claimant performing a “flip” and then the child of 15 also performing a “flip” in very quick succession. In so doing, the heel of the 15 year old boy struck the claimant’s head causing a serious brain injury with lifelong consequences.

In the first instance decision, his Honour Mr Justice Steel held that the defendants acted in breach of their duty of care through failing to keep an uninterrupted constant watch / supervision over the bouncy castle and for permitting a mix of sizes of children on the castle, and that these breaches were causative of the accident. He found as a matter of fact that Mrs Perry gave permission for the claimant to go onto the bouncy castle and that the child of 15 gave a warning before performing his “flip”. The parents – with the backing of their household insurers – appealed that decision and judgment was handed down today in favour of the parents, unanimously overturning the earlier decision.

At the Court of Appeal, Lord Chief Justice, Lord Justice Wilson, Lord Justice May criticised the Trial Judge’s selective reliance on evidence by the elder boy, whilst also finding his evidence was otherwise unsafe; in particular the Court of Appeal did not accept the finding that the boy had given a warning. This was relevant as the Judge had relied upon that alleged warning as having given Mrs Perry an opportunity to intervene. The Court of Appeal did not accept it was appropriate for the Trial Judge to judge the actions of Mrs Perry against written guidance, despite finding that the parents had not seen this nor ought to have unearthed it. Irrespective of this the Trial Judge had still placed reliance on this as being “instructive” when determining their duty of care.

In the final paragraph of the Judgment, the Court of Appeal put the whole legal analysis into common sense analysis: “The issue is whether a reasonably careful parent could have acted in the same way as the defendant?” In their judgment the defendants could not be held at fault in any way and concluded: “This was a ‘freak and tragic accident’ that occurred ‘without fault’”.

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