Contributory negligence and children

Contributory Negligence- The Law

Road traffic accidents are the major cause of life changing injuries for those involved, especially for children who sustain traumatic brain injury as they are still growing and developing.   It can take many years, often into adulthood for the extent of the impact on their lives to become apparent.

Whilst it may not be completely obvious, the law of contributory negligence also applies to cases where a child is injured when their carelessness contributes to the accident.

The starting point is the Law Reform (Contributory Negligence) Act 1945. This gives rise to three questions:

• Was the claimant at fault;
• If so, did the claimant suffer damage (partly) because of his/her fault; and
• If so, to what extent is it just and equitable to reduce his/her damages.

The law of contributory negligence applied to children is more complex than when applied against adults. The factual circumstances have to be considered in more detail and the standard expected of a child of a similar age is also to be considered.  Children, depending on their age cannot be held to the same standard as that of an adult. Although, there is no set rule as to a particular age a child could be found contributory negligent, the standard of care expected of a child is measured by what can reasonably be expected of a child of the same age, intelligence and experience.

Most cases turn on their specific facts and the Courts are often at pains to make this clear.  That said, there is case law that sets general authority around contributory negligence and children.

One of particular note is the case of Gul v McDonagh [2021] EWCA Civ 1503 – which sets out  the courts approach to contributory negligence applied to children.

The claim related to a road traffic collision that occurred on 17 October 2015. The claimant, a boy aged 13, was crossing a residential road in London when he was hit by the uninsured driver who was fleeing the police. The driver had been travelling at 40mph in a 20mph zone. The boy sustained catastrophic injuries. The Motor Insurers Bureau, involved in proceedings as the driver was uninsured, admitted primary liability but argued that the boy was contributorily negligent.

His Honour Judge Mark Gargan, sitting as a Deputy High Court Judge, ordered that the claimant could recover 90% of the damages that he was awarded. The Judge found the claimant to have been 10% contributorily negligent. The Court of Appeal upheld that finding.

The Court of Appeal accepted that a 13-year-old boy was old enough to be found contributorily negligent. The Court held that the trial judge had been entitled to conclude that the claimant’s fault was one of the causes of his injuries. The trial judge found that, had the claimant waited for the vehicle to pass or kept his eye on the vehicle as he crossed, the collision would have been avoided. The Court held that a reasonable 13-year-old would have kept the car under observation and could have accelerated his crossing of the road in order to avoid being hit.

In contrast, in the case of Alabady v Akram (2021), a child who was 9 years old was crossing a road with her family and mother when the pedestrian light was red.  Unfortunately, the child became separated from the group, and she was struck by a car driving at 43mph is a 30mph speed limit zone, suffering injuries as a result. The defendant alleged the child was contributorily negligent.

The court ruled the child was not at fault, as she was under the supervision of her mother and a child of that age would ‘naturally work on the basis that it was safe to follow the lead’ of adults. The Claimant’s momentary lapse in concentration which caused her to move ahead of the group did not amount to fault as it would not be reasonable to expect a child of her age to keep a close eye on the group that she could stop within a second or so of them stopping whilst moving across the road.

At Anthony Gold, our team will thoroughly investigate the circumstances of your accident, gather all the necessary evidence, and provide you with clear, practical advice on the strength of your claim.

Contact us on 020 7940 4060 or send us an email at mail@anthonygold.co.uk, to make an enquiry.