Can an 8-year old child be contributory negligent?

The short answer is yes, but that was not the finding of Mrs Justice Yip when she handed down her Judgement in the case Master Caine Ellis v Mr Paul Kelly and Mrs Violet Ellis on 31 July 2018.

Caine was involved in a road traffic accident on 20 September 2008, when he was 8 years old. He had been struck by Mr Kelly’s car whilst crossing a road close to his home. He suffered a traumatic brain injury and is unlikely to be able to live interpedently or undertake any kind of paid employment. That is as far as the Judgment commented on the value of the claim. Primary liability was admitted and the live issues at trial were firstly, whether Caine should be found contributory negligent for his part in the accident and secondly, whether his mother, Violet Ellis, should bear any responsibility.

The Facts

Caine comes from a close family. His mother, allowed him to him to go out to the local park without adult supervision if he was accompanied by one of his older cousins, who were 10 and 11 years old respectively. When they were out, the children were encouraged to stay together, and they had a mobile phone with them, so they could keep in contact with their parents in case of an emergency.

Caine’s mother had taught him the Green Cross Code as she walked him to school and everywhere else. She did not allow him to go out without an adult until she thought it was safe.

On the day of the accident, Caine had gone to the park with his 11-year old cousin, Cyrus. After they had been in the park for some time, Cyrus had left to attend a skate park nearby, leaving Caine with his 10-year old cousin, Chloe. A short while later, Caine wanted to go to the skate park as well and eventually left the park by himself to find Cyrus.

It is not completely clear what happened next, but Caine did not find Cyrus at the skate park. It is suspected that he went to the local shop on Gospel Lane to attempt to find him. Caine ran into Gospel Road in a diagonal direction towards a zebra crossing. As he ran into the road, he was struck by Mr Kelly’s vehicle.

Lay witness evidence suggested that Mr Kelly was driving in excess of the 30mph speed limit. The accident reconstruction experts called by the Caine’s legal team and Insurers reached an agreed view that he was driving at between 31mph and 40mph. They also agreed that if Mr Kelly had been driving at 30mph he would have been able to stop safely and avoid the collision.

Contributory Negligence

The insurers’ argument on this issue, was that Caine was negligent as he ran into the road when Mr Kelly’s vehicle was near him and a clear danger. They also alleged that he ran out from a position which gave Mr Kelly a limited opportunity to react.

Mrs Justice Yip set out the legal basis for determining whether a party had been contributory negligent. The Law Reform (Contributory Negligence) Act 1945 states:

“Where any person suffers damage as the result partly of his own fault and party of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.

Lord Denning applied this test in the case of Davies v Swan Motor Co Ltd (1949). Mrs Justice Yip confirmed that it is now very well established that apportioning responsibility between a claimant and defendant involved a consideration of the causative potency of what they have done and their relative blameworthiness.

Mrs Justice Yip stated that the was “no hard and fast rule” as to which age a child could be found contributory negligent. In judging the actions of a child, the standard of care is to be measured by that reasonably to be expected of a child of the same age, intelligence and experience.

The insurers relied on the case of AB v Main 2015 EWHC 3183(QB) where child aged 8 years and 10 months was found to be 20% contributory negligent. The driver in that case was found to be driving 10mph under the speed limit. The insurers did not rely on any other cases involving a successful finding of negligence against an 8-year old. Mrs Justice Yip stated that a finding against a child of that age was uncommon.

Accordingly, any finding of contributory negligence will be determined by the facts of the case. Irrespective of the admission of primary liability, Mrs Justice Yip first considered Mr Kelly’s blameworthiness. She found that he was clearly driving faster than the 30mph speed limit. She also found that Gospel Road was well known to be a play area, with lots of children around. She considered that irrespective of the speed limit, a safe speed on Gospel Road was no more than 20mph.

She found that Caine’s experience of Gospel Road was likely that it was a safe place to be, as drivers normally drove along there with caution. It was to his great misfortune that the first time he crossed it alone, he was faced with a car being driven in a way he had never experienced before i.e. at excess speed and with no consideration for children playing close by.

Mrs Justice Yip contrasted Mr Kelly’s blameworthiness and the causative potency of his actions against Caine’s actions. She stated the following whilst dismissing the insurers’ submissions for a finding of contributory negligence

“I find that this was a case of momentary misjudgement on Caine’s part balanced against reckless conduct of the part of the defendant, whose driving was outside Caine’s expectations based on his understanding an experience. In my judgment it would not be just and equitable to make a finding of contributory negligence in these circumstances and I decline to do so.”

Mrs Ellis’ Liability

The insurers did not pursue an argument that Caine’s mother was negligent in allowing him to go out with his older cousins. Their allegation of negligence was based on a perceived failure to provide Caine with clear and detailed rules about what should happen whilst he was out with his cousins.

The insurers only confirmed at trial that they were not seeking a contribution from Mrs Ellis towards Caine’s damages and legal costs. They were raising only the argument to attack her gratuitous care claim for the assistance she now had to provide to Caine.

Mrs Justice Yip’s opening comment after dismissing the Part 20 was that she found that Mrs Ellis was a responsible mother who took proper care for her son. She also stated the following:

“No matter how careful a parent is, it is impossible for children to be completely protected from risk. Keeping children cooped up and not allowing them to experiment with small freedoms carries its own risk. There is a difficult balance to be struck. Different parents in different circumstances will make different decisions about how best to strike that balance. Sadly, when something goes catastrophically wrong, a parent may look back and agonise over the choice they made. The fact that, with hindsight, they would have taken a different course is very far from establishing that their original choice was wrong, still less that they were negligent.”

She found that holding Mrs Ellis responsible would be to impose far too high a standard on an ordinary parent making ordinary decisions during parenting as to how to keep their child reasonably safe.

She did not agree with the insurers’ submission that it would unreasonable for a child to be held too young to be held contributory negligent but for the parent not to be liable for allowing them to be out alone and stated the following:

“Each party’s responsibility is to be considered separately by reference to the appropriate standard of care. In the case of the child, this is the standard of a reasonable child of his age and understanding. In the case of the parent, it is the standard of a reasonable parent. I have explained why, in the circumstances of this case, I do not consider Caine or Mrs Ellis to have fallen below the relevant standard such that responsibility should attach to either of them.”

Overview

This Judgment provides a helpful summary of the law around contributory negligence and the liability for a parent when their child is involved in an accident.

I am surprised that the insurers in this claim fought either issue to trial, whatever the possible financial saving they could have made. Mr Kelly’s standard of driving was well below an acceptable standard. He was driving in an unsafe and reckless manner. The causative potency of his negligence was always going to be a very significant factor. Any judge was going to find it very difficult to reduce a severely injured young man’s damages when Mr Kelly has driven so recklessly.

Mrs Justice Yip provides helpful comments about the extent of a parent’s liability in such circumstances. The tone of the Judgement suggests that she was not particularly impressed with the insurers for including her as a Part 20 Defendant in the first place. She outlined the difficulties caused in litigation when a parent is included as a Defendant, in particular that the parent is unable to act as litigation friend.

Whilst each case will turn its own facts, Mrs Justice Yip applies a common-sense test to what risks parents will allow their children to be exposed to allow them to develop.

The insurers were refused permission to appeal. I would be surprised if they looked to challenge this Judgment further.