CHILD PEDESTRIAN WAS NOT CONTRIBUTORY NEGLIGENT: HIGH COURT DECISION

In A (a minor) by her litigation friend FA -v- Akram [2021] 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 FACTS

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 [1949] 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)”
18.  I bear in mind that Swan did not involve an allegation of contributory negligence against a child. It is important to consider it in that light. The 2 questions posed by Denning LJ make it plain that the court must first determine if damage was caused partly by the fault of the claimant and partly by the fault of others. If the conclusion is that damage was indeed so caused the second question is how should the damage be apportioned?
19.  Causation is the decisive factor in determining the first question. The second question is to be determined by reference to relative causative potency and the moral blameworthiness of each party. The first question involves no direct comparison of fault.
20.  I was referred to other authorities.

21.  It was established in Nance v British Columbia Electric Railway [1951] AC 601 [1951] 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.”
22.  Viscount Simon nonetheless went on to say that a pedestrian stepping into the road owes a duty to approaching traffic to take reasonable care.
23.  In Jones v Livox Quarries [1952] 2 QB 608 (again I note a case which did not involve allegations of contributory negligence against a child) Mr Jones, in breach of his employer’s express prohibition, hitched a ride on the back of a slow moving and heavy vehicle (“a traxcavator”) whilst working in a quarry. Another slow moving and heavy vehicle was negligently driven into the back of it causing Mr Jones severe injury. His employers raised contributory negligence. At first instance Hallett J had found Mr Jones to have been at fault and reduced his damages by 20% but had also concluded (see Hodson LJ) that a man hitching a lift on the traxcavator “ran the risk of being thrown off and no other risk” not that he might be crushed by another vehicle. Mr Jones appealed on the basis that his “fault” had not caused the injury but had simply put him in the wrong place at the wrong time. relying on the judge’s finding that the injury was not foreseeable. Livox cross-appealed on the basis that this type of accident was not foreseeable.
24.  Denning LJ said “even though the plaintiff did not foresee the possibility of being crushed, nevertheless in the ordinary plain common sense of this business the injury suffered by the plaintiff was due in part to the fact that he chose to ride on the traxcavator”. His view was that foreseeability on the facts of that case was not “the decisive test of causation”. He found that the claimant’s “fault” in being on the traxcavator had done more than merely set the scene for the negligence of the defendant to occur. That being so it was right to conclude that the claimant had suffered damage ” as the result partly of his own fault and partly of the fault of any other person or persons” (emphasis added).
25.  Denning LJ also said that when considering foreseeability the claimant must take into account ” the possibility of others being careless “. This might suggest that he thought that the claimant should be taken to have foreseen “the possibility of being crushed”. Dr Braslavsky relies on these underlined words to support his argument that Khadija is not entitled to rely on the fact that she took her lead from the group when stepping into the road against the red man signal.
26.  I was referred to Toropdar v D [2009] EWHC 2997 . That case did involve contributory negligence allegations against a child. The approach of Christopher Clarke J in that case is summarised by Yip J in Ellis . Both decisions rely on Gough v Thorne. That decision has been applied regularly in cases concerning the contributory negligence of children. Whilst I accept that cases are fact sensitive and note that the case report shows that no authorities were cited, the facts of the cases are instructive.
27.  In that case the claimant, who was 13 years and 6 months old was standing with her two brothers, aged 17 and 10 respectively, on the pavement waiting to cross a busy main road. A lorry stopped in the main road to allow the children to cross. It stopped by a bollard in the middle of the road. The lorry driver held out one arm to stop traffic and with the other beckoned the 3 children to cross the road. As they passed the front of the lorry the defendant drove his bubble car through the gap between the lorry and the bollard and struck and injured the claimant. The trial judge found that the defendant was negligent in driving too fast and in failing to observe the lorry driver’s signal, but that the claimant child was one-third liable for the accident by advancing past the lorry into the open road without pausing to see whether there was any traffic coming from her right.

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)
30.  Two points emerge from this passage. First, if a child is of such a young age that he or she cannot be expected to take precautions for his her own safety a finding of contributory negligence is precluded. Secondly, if a finding is to be made, blame must attach to the child.

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 .”

THE ABSENCE OF CONTRIBUTORY NEGLIGENCE IN THE CURRENT CASE

The judge found that there was no contributory negligence on the facts of the current case.
33.  I then turn to answer the 2 central questions: is Khadija partly at fault for the damage she suffered? And if so, what should the apportionment be?
34.  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. At least it must be entitled to take into account (as Lord Denning MR and Salmon LJ did in Gough): who the child was with, if companions were older and so more responsible and what encouragement the child had had from others who were older and more responsible. This is how the court takes account of the fact that “the child cannot be expected to have the road sense of someone older”.
35.  It seems to me that a single proposition lies at the heart of the defendant’s submissions on “fault”: Khadija should be treated as if she was on her own on the crossing. She cannot rely on the group to displace her own obligation to take reasonable steps to keep herself safe and there can be no doubt that had she been alone her injuries would have been caused “as the result partly of her own fault”. Dr Braslavsky submits that she must bear responsibility for crossing against a red man signal and for what he characterised as her deliberate decision to move forward from the group.
36.  As persuasively and attractively as the point was put, I cannot accept it.
37.  On the authorities, I must measure Khadija’s conduct by reference to an average girl of her age but with her characteristics bearing in mind that her road sense and experience was not fully developed. Bearing that in mind, I am satisfied that Khadija was not at fault by crossing the road when the red man signal was against her. She was with a group under the general supervision of her mother and with her adult cousin. A child of her age would naturally work on the basis that it was safe to follow the lead both of her adult cousin and her mother. She would have confidence in them and work on the basis that they would take steps to keep her safe. If the group started to cross what was she expected to do? It is wholly unrealistic in my judgment to say that a girl of a little over 9 should have caused the group to stop and wait before crossing or should have stopped herself to check the road was safe.
38.  When on the crossing, Khadija’s momentary lapse of concentration which caused her to move ahead of the group does not in my judgment amount to fault. It would not be reasonable to expect a girl of her age to keep such a close eye on the group that she could stop within a second or so (probably less than a second to avoid the collision) of them stopping whilst moving across the road.
39.  If I am wrong and Khadija in fact failed to take reasonable care of her own safety I would have found that her failures had caused in part her loss. I would then have needed to consider the question of apportionment by reference to the causative potency of her failures and moral blameworthiness. I would be entitled to consider all the circumstances of the case and to take account of Khadija’s age. As His Honour Judge Stephen Davies concluded in AB v Main [2015] EWHC 3183 sitting as a Judge of the High Court: ” Nonetheless 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 not been so young he would almost certainly not have done what he did .”
40.  It is important to bear in mind the defendant’s evidence is that he thought the group ” had seen me approaching and would stop before getting to my lane. I did not think they would get to the right lane that I was travelling in before I was [past] them ” before he reached the stop line. Had he braked there with some urgency he could have come to a complete stop at or about the point of collision 45 m away. Had he been travelling at 30 mph he would have been able to stop 19 m in front of the crossing. But the defendant’s evidence is that he was prepared to take a gamble based on his own assessment of their speed that he would have passed them before they crossed his path. On the other hand the claimant as a young child followed her family over a crossing and was distracted for a moment so that she did not have the chance to stop.
41.  Had my decision called for an apportionment I would have reached the firm conclusion, bearing in mind Khadija’s age and all the circumstances of the case, that the reduction in damages would have been minimal and at most 10%. I would have regarded such a reduction as de minimis. I would therefore in any event have made no reduction in Khadija’s damages.
42.  For all of those reasons and primarily because I find Khadija was not at “fault” but in the alternative because any reduction in her damages would be de minimis, I find that there is no contributory negligence.