Law Weblog

Blake v Galloway [2004] CA

Tuesday 29 June 2004 at 9:57 pm | In News | Post Comment

[Negligence – duty of care – horseplay – duty only breached by recklessness or high degree of carelessness]
D threw a piece of wood bark at C hitting him in the eye causing serious injury. They were throwing bark and twigs at each other during their lunch break. C and D were members of a jazz quintet (all about 15 years of age). D relied on C’s consent and volenti non fit injuria as defences (to battery and negligence).

Held: Only recklessness or a very high degree of carelessness is sufficient to breach the duty of care owed during horseplay. There is a close analogy between organised sport and horseplay. The absence of formal rules in horseplay is not sufficient distinction, both are consensual, involve physical contact, decision are made quickly or instinctively. C had consented to the risk.

C lost