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

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. • 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

the road under the direction of her mother. HHJ Bird considered that Khadija was not at fault to cross with the group, or for not conducting her own checks. Nor was she at fault for a momentary lapse of concentration which prevented her from stopping at the same time as the rest of the group.

It appears that a child who crosses the road under the direction (express or implied) of an adult is unlikely to be held to be contributorily negligent unless their age and experience is such that they would be expected to second guess or verify the situation for themselves.

• HHJ Bird considered what he would have found, had he found Khadija at fault and causation established. He cited AB v Main [2015] EWHC 3183, wherein HHJ Davies commented “I am satisfied that given the Claimant’s age and experience it would be quite wrong to reduce the damages to anything like the same extent that I would have had he been an adult. His share in the responsibility for the damage must reflect the fact that had he been so young he would almost certainly not have done what he did.” This suggests that, where an adult and child have committed the same fault, their blameworthiness is likely to be judged differently.

• Even had HHJ Bird found Khadija contributorily negligent, he would have assessed this at no more than 10%. He stated “I would have regarded such a reduction as de minimis. I would therefore in any event have made no reduction in Khadija’s damages.” The idea that a 10% reduction is “de minimis” in a claim of rather significant value may make

Defendants blanche.

Learning points

Claimants may be too quick to agree hefty reductions for contributory negligence where the Claimant is a child. The facts of each case should be looked at carefully by reference to the above principles, and no assumption made that a reduction would be similar to that involving an adult. Of course, the age of the child will be critical.

The judgments in Alabady and Toprador suggest that a Defendant seeking to minimise damages in cases where a child crossed under the direction of an adult may need to join that adult for a contribution, rather than place reliance on a contributory negligence finding.

Lorna Badham

Barrister, St Philips Chambers