CHILD PEDESTRIAN WAS NOT CONTRIBUTORY NEGLIGENT: HIGH COURT DECISION
In A (a minor) by her litigation friend FA -v- Akram  EWHC 2467 (QB), 2021 WL 04111024 HHJ Bird (sitting as a High Court judge) rejected an argument that a nine year old child had been contributory negligent. It is a judgment that contains a helpful summary of the basic principles relating to contributory negligence, particularly in relation to children.
“The court must gauge “fault” by reference to what can reasonably be expected of a child with the age and characteristics of the claimant in the circumstances the claimant found herself, bearing in mind that her road sense and experience were not what would be expected of an older person. In undertaking that exercise the court must take account of all the circumstances of the case.”
The claimant was 9 years old at the time of the accident. She was in a group, including adults, who were crossing the road. Whilst other members of the group slowed down when there was an oncoming car the claimant carried on and the point of impact was about 2m in front of the group. The judge was determining a preliminary issue as to whether there was any contributory negligence and the extent of such negligence.
THE LAW RELATING TO CONTRIBUTORY NEGLIGENCE
The judgment contains a detailed consideration of the law relating to contributory negligence, particularly in relation to child claimants.
16. The law on contributory negligence begins with section 1 of the Law Reform (Contributory Negligence) Act 1945 . It provides:
” 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 …”
17. The scheme of the Act is reflected in the judgment of Denning LJ in Davies v Swan Motor Company Limited  2 KB 291 . He said this:
“Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff , nevertheless, the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may be found by the court to be “just and equitable,” having regard to the claimant’s “share in the responsibility” for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness. ….Speaking generally, therefore, the questions in road accidents are simply these: What faults were there which caused the damage? What are the proportions in which the damages should be apportioned having regard to the respective responsibilities of those in fault? (emphasis added)”
21. It was established in Nance v British Columbia Electric Railway  AC 601  AC 601 a finding of contributory negligence against a claimant was not dependent upon the claimant owing a duty to the defendant. Viscount Simon said:
“When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself, and contributed, by that want of care, to his own injury.”
28. The decision was appealed on the basis that the trial judge had failed to take account of “her tender years” when finding contributory negligence. The trial judge had said in answer to the question: was there contributory negligence?”:
“I think that there was. I think that the plaintiff was careless in advancing past the lorry into the open road without pausing to see whether there was any traffic coming from her right. I do not think that her responsibility was very great. After all, the lorry driver had beckoned her on. She might have thought it unlikely that any traffic would try to come through the gap. She might have thought that if there were any traffic coming from that direction, it would wait until the lorry started to move or gave the all clear. She was, after all, only 13 years old. I assess her degree of responsibility at one-third.”
29. Lord Denning MR disagreed. He said:
“A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. 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 . A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.” (emphasis added)
31. Lord Denning MR went on to explain why no blameworthiness attached to the child in that case:
“In this particular case I have no doubt that there was no blameworthiness to be attributed to Elizabeth at all. Here she was with her elder brother crossing a road. They had been beckoned on by the lorry driver. What more could you expect the child to do than to cross in pursuance of the beckoning? It is said by the judge that she ought to have leant forward and looked to see whether anything was coming. That indeed might be reasonably expected of a grown-up person with a fully developed road sense, but not of a child of 131/2.” (emphasis added)
32. Dankwerts and Salmon LLJ agreed with the Master of the Rolls. Salmon LJ said this (emphasis added):
“The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 131/2 could be expected to have done any more than this child did. I think that any ordinary child of 131/2, 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 . I agree that if she had been a good deal older and hardened by experience and perhaps consequently with less confidence in adults, she might have said to herself: “I wonder if that man has given the proper signal to traffic coming up? I wonder if that traffic has heeded it? I wonder if he ought to have beckoned me across when he did and whether he looked behind him before doing so?” She might not have gone past the front of the lorry without verifying for herself that it was safe to do so. But I think it would be quite wrong to hold that a child of 131/2 is negligent because she fails to go through those mental processes and relies unquestioningly on the lorry driver’s signal .”