Contributory Negligence & Children

Gul v McDonagh [2021] EWCA Civ 1503 – https://www.judiciary.uk/wp-content/uploads/2021/10/Gul-v-McDonagh-judgment.pdf

On 19 October 2021, the Court of Appeal handed down judgment in Gul. This case raised important questions in relation to contributory negligence.

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 considered the law of contributory negligence. 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 fault; and
• If so, to what extent is it just and equitable to reduce his damages.

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.

This judgment demonstrates that, ultimately, the level of contributory negligence will depend on the facts on a case-by-case basis. When deciding upon percentages for contributory negligence, judges will have to consider the blameworthiness of the claimant’s actions.

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