Contributory Negligence and Children

The recent case from October last year – Gul v McDonagh [2021] EWCA Civ 1503  – resulted in a judgment that illustrates how courts may approach findings of contributory negligence in cases involving injury to children.

The claim related to a road traffic collision that occurred on 17 October 2015. The claimant was a 13-year-old boy, who was crossing a residential road in London when he was hit by the driver. Unfortunately, the boy sustained a very serious brain injury. The uninsured driver was speeding at the time of the accident in an attempt to evade the police, driving 40mph in a 20mph zone. As the driver was uninsured, the Motor Insurer's Bureau was involved in proceedings. While admitting primary liability, they argued that the boy was contributorily negligent. The trial before the Judge was limited to the question of contributory negligence.

The Law

When considering the law of contributory negligence, the Law Reform (Contributory Negligence) Act 1945 poses three questions for consideration:

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

The Outcome

The Judge found that the claimant had been 10% contributorily negligent. The Court of Appeal upheld this decision and accepted that a 13-year-old boy was old enough to be found contributorily negligent and held that the trial Judge had been entitled to conclude that the claimant's fault was one of the causes of his injuries. The Court of Appeal accepted that a modest 10% reduction was unusual but observed that there is nothing within the 1945 Act or in any other available authority that a 10% reduction is not permissible. The Judge came to his decision based on facts of the case:

• Had the claimant waited for the car to pass, or had looked at the vehicle as he crossed the road, he would not have been hit (the road was clear so the vehicle would have been clearly visible, and witnesses observed how dangerously and fast the vehicle was being driven);
• Had the claimant increased his speed while crossing the road after observing the increased speed of the vehicle, he would not have been hit (expert evidence determined he would have only had to have travelled an additional 30cm to have successfully cleared the path of the vehicle); and
• The claimant was wearing headphones at the time of the collision, and the Judge commented that a person wearing headphones when crossing a road must take more care, as they cannot rely on their hearing to warn them of danger.

The Court of Appeal agreed with these findings and held that a reasonable 13-year-old would have kept the vehicle under observation and could have accelerated his crossing of the road to avoid being hit. The judgment states "Whilst deeply sympathetic to the claimant, I do not think his culpable misjudgement can be wholly ignored. However, when balanced against the conduct of the first defendant, it falls very much at the lowest end of the scale." The defendant had initially proposed a 25% reduction in damages.

What does this mean for the future?

This decision highlights how ultimately, the level of contributory negligence is often highly fact dependent and case specific. But it also demonstrates that, even where a driver's conduct is described as "particularly egregious ", a judge will still need to consider the causative potency and blameworthiness of the claimant's actions before deciding whether to make a deduction for contributory negligence.