Children and Contributory Negligence: a summary of the law
Lorna Badham Lorna Badham revisits the question in light of the High Court decision of Alabady v Akram [2021] EWHC 2467 (QB). Alabady concerned a nine year old girl (Khadija) who was crossing a busy road in Manchester when she was hit by the Defendant’s car. She had been crossing in a family group which included her mother and three cousins of similar or older age. The group crossed at a formal crossing point but on red. Khadija was closest to the Defendant’s car and had, whilst momentarily distracted, continued to cross whilst the rest of the group had stopped. The Defendant drove into the junction at 43 miles per hour, and was still travelling at around 33 miles per hour when he collided with Khadija. Both the Claimant and Defendant instructed CCTV and accident reconstruction experts, whose agreed opinion was that: a If Khadija had looked to her right as she started to cross (when the defendant was 75 m away) she would have had a clear and uninterrupted view of the defendant's car. b If when Khadija began to cross the defendant had been travelling at the maximum permitted speed of 30 mph it would have taken some 5.6 seconds to reach the point of impact. By that time Khadija would have walked to a point 2 m beyond the collision point. There would therefore have been no collision. c The defendant probably started to react to the presence of the group at about the point the car crossed the stop line the north of the junction. If the defendant had been travelling at 30 mph at the point the car crossed the stop line (assuming the same perception response time of
20
1.1. seconds) the car's total stopping distance would have been around 26 m from the stop line or about 19 m from the crossing. There would therefore have been no collision. d At the actual approach speed of 43 mph (assuming a PRT of 1.1. seconds) the total stopping distance from the point the car crossed the stop line "under full emergency braking" was 45 m. The collision might well therefore have been avoided but would certainly have happened at a much lower speed. e If the defendant had been travelling at 26 mph at the point Khadija stepped onto the crossing he could have continued his journey without the need to brake at all and the collision would have been avoided. f The collision would have been avoided if Khadija (and the group) had obeyed the "red man" signal and would have been avoided if she had stayed with the group. HHJ Bird, presiding, found that Khadija had not been contributorily negligent. His judgment provides a useful summary of the principles surrounding the assessment of contributory negligence in cases involving children. Key principles • the starting point is section 1 of the Law Reform (Contributory Negligence) Act 1945, which states that “where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, 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” (emphasis added). • Denning LJ in Davies v Swan Motor Company Limited [1949] 2 KB 291 stated that the determination of whether, and to what extent, a reduction for contributory negligence is just and equitable “involves a consideration, not only of the causative potency of a particular factor, but also its blameworthiness.” This case did not concern a child.
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• In Alabady, HHJ Bird found (in relation to the test in Davies) that “the court must first determine if damage was caused partly by the fault of the Claimant and partly by the fault of others… causation is the decisive factor in determining the first question…the first question involves no direct comparison of fault.” If the conclusion is that damage was caused partly by the Claimant’s fault, the court will only then consider how damage should be apportioned “by reference to relative causative potency and the moral blameworthiness of each party.” • Gough v Thorne [1966] 1 WLR 1387 (confirmed in Ellis v Kelly [2018] 4 WLR 124) provides the principle that the standard of care to be expected of a child is to be measured by what is reasonably to be expected of a child of the same age, intelligence and experience. • in Toprador v D [2009] EWHC 2997, Denning LJ formulated the principle that “a judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety: and then he or she is only to be found guilty if blame should be attached to him or her.” Therefore a child too young to be expected to have a care for their own safety should not be found contributorily negligent. In respect of blameworthiness, in Toprador the child Claimant was a 13 year old girl who had been stopped by the side of the road when a lorry came to a halt and beckoned her and her party across. As she passed in front of the lorry a driver squeezed through the gap and struck her. Denning LJ considered “that any ordinary child of 13 ½, seeing a lorry stop to let her cross and the lorry driver, a grown up person in whom she no doubt had some confidence, beckoning her to cross the road, would naturally go straight on, and no one in my view could blame her for so doing.” Whilst the Claimant may have been blameworthy had she been “a good deal older” such that she would have been expected to verify the safety of her passage for herself, she was not in this instance. These facts bore a similarity to those in Alabady, as Khadija had crossed
