A Court of Appeal judgment absolved a couple from responsibility for serious injury to a child at a bouncy castle party. But should parents be required to provide a constant watch of children's activities? Graham Ecklund reports

The recent Court of Appeal judgment that absolved parents giving a children's party from responsibility for serious injuries suffered by an 11-year-old boy playing on a bouncy castle they had hired was a victory for common sense.

Describing the accident as "freak and tragic", the Court of Appeal held that the parents' conduct in relation to the boy was of a level that a reasonably careful parent was bound to show for a child of the claimant's age.

The case was an appeal from the High Court judgment Harris v Perry [2008] made on 8 May, 2008, in which Mr Justice David Steel found Mr and Mrs Perry in breach of their duty of care to Sam Harris.

The facts of the case are as
follows: Mr and Mrs Perry were giving a bouncy castle party for their triplet 10-year-old children. The party was due to start at 1pm. From about 10am the triplets, plus three other children aged between nine and 12, played on the adult bouncy castle and an inflatable bungee run. In addition, the Perrys' 15-year-old neighbour, who was very tall for his age and was substantially larger than any of the other children, played on the bouncy castle from time to time during the morning. Mr and Mrs Perry had known him for three years as an immediate neighbour and as someone who had played football and computer games with their own children. He was trusted as a responsible person and described by Mrs Perry in evidence as a "gentle giant".

Two of the children who had been given permission to be on the inflatables had their mother nearby. She made no complaint about the level of supervision and had been content to allow her nine-year-old daughter to be on the bouncy castle (including with the 15-year-old boy) while Mrs Perry was the only adult present.

At about 12 noon, the claimant, Sam Harris, and his friend Simon were given permission by Mrs Perry to go onto the bouncy castle. At that specific time, she was attending to a child on the bungee run, about 18 feet away from the bouncy castle. From that position she was not able to look directly into the bouncy castle. Ordinarily Mrs Perry stood in a position where she could see the activity on both the bouncy castle and the bungee run.

Shortly after Sam Harris and his friend, Simon, got onto the bouncy castle, both did somersaults. The 15-year-old boy then did a somersault himself, but he was too close to Sam Harris and his rotating heel struck Sam's head. Sam Harris was very seriously injured.

The High court's findings

The judge found that Mrs Perry was in breach of her duty of care in two respects. Firstly, she ought to have maintained uninterrupted supervision and a constant watch on the bouncy castle. Had she done so, she would have seen the first somersault and would have stopped the somersault that the 15-year-old neighbour performed. Secondly, she should not have permitted the 15-year-old to be on the bouncy castle at the same time as the smaller and younger children. In determining the applicable duty of care, the judge did not consider Mrs Perry's conduct by reference to what care a reasonably careful parent would have shown for her own children. Instead, he relied on three documents.

The first of those documents was the terms of a hire agreement that Mr and Mrs Perry had received and which Mr Perry had signed. Those terms recommended that the equipment be supervised at all times, that boisterous behaviour be stopped, and that there should be no mix of children of different sizes on the equipment "unless specifically designed so".

The second was 'Health and Safety Information Sheet 7′ – found on the website of the company which supplied the inflatables to Mr and Mrs Perry. It recommended that "the operator and attendants should watch the activity on the inflatable constantly". Neither Mr nor Mrs Perry saw the information sheet and it did not form part of their contract documents.

The third document was a set of guidelines issued by the British Inflatable Hirer's Association on the terms and conditions which its members might choose to incorporate into their agreements with customers. These included the recommendation that "a responsible adult must supervise the inflatable at all times". Again, neither Mr nor Mrs Perry saw this document.

The Court of Appeal's decision

The Court of Appeal allowed Mr and Mrs Perry's appeal. It stated that it is quite impractical for parents to keep children under constant surveillance or even supervision, and that it would not be in the public interest for the law to impose a duty upon them to do so.

It said that the test the High Court judge should have applied was: what care would a reasonably careful parent have shown for a child of the same age as the claimant when supervising the activities on the inflatables. It also found that the judge ought not to have had regard to the documents which the Perrys had not seen and that it was not reasonably foreseeable that boisterous play on the bouncy castle would involve a significant risk of serious harm.

The Court of Appeal said that the applicable standard of care was that which was appropriate to protect children against a foreseeable risk of physical harm that fell short of serious injury. It went on to hold that the High Court judge imposed an unreasonably high standard of care in asserting that the bouncy castle required uninterrupted supervision. In turning to attend to a child on the bungee run, Mrs Perry was not, it said, exposing the children playing on the bouncy castle to an unacceptable risk.

In addition, the Court of Appeal stated that although there was a greater risk of injury if there was a larger child involved in a collision on a bouncy castle, it did not automatically follow that a careful parent should prevent children of different sizes playing on the bouncy castle together. It was necessary to consider all the circumstances. It was relevant, for example, to have regard to the fact that the 15-year-old boy was well known to the Perrys, that he was responsible and gentle, and that he had been playing with other children on the bouncy castle in the course of the morning without incident.

It seems fair to require parents who are looking after other people's children to provide the degree of care they would be expected to show to their own children. It should not be difficult to ask the question: 'What would I do to care for my own child of the same age in these circumstances? – and act accordingly. The question requires consideration of all the circumstances known to the parents – but not reference to documents and material that are outside their knowledge. As a result, parents will not be required automatically to provide a constant watch of children's activities.

Graham Eklund QC represented Mr and Mrs Perry in the Court of Appeal judgment of 31 July, 2008.