Road traffic: Seriously injured child pedestrian held to be 10% contributory negligent

The Court of Appeal has upheld a first instance decision that a 13-year-old child was 10% contributorily negligent for serious injuries he suffered after being hit by a speeding car when crossing the road.

Gul v (1) McDonagh (2) Motor Insurers Bureau [2021] EWCA Civ 1503

The judge concluded that a reasonable 13-year-old should have appreciated that the First Defendant’s vehicle was travelling much faster than it should have been and was a potential source of danger. The Claimant should therefore have waited to cross the road, or alternatively, having started to cross should have kept his eye on the vehicle allowing him to hurry up if necessary.

The appeal raised some interesting and novel issues. The submissions of the Claimant had generated the proposition of whether a party could be found to have suffered injuries “partly as a result of his own fault [but that the Court should] nevertheless… make no reduction to his damages.” Whilst the Court did not ultimately address this proposition, the Defendant had submitted that “if a Court has found the claimant to be at fault, and that fault to be a cause of his damage, it is just and equitable to make a deduction [to the damages award].”

Furthermore, Lord Justice Nugee considered the concept of ‘fault’ where contributory negligence is raised by the defendants. He noted that judicial precedent identified ‘fault’ in this circumstance is not a breach of legal duty owed to someone else, but a failure on the part of the Claimant to take reasonable care as he should have done for his own safety or property.

Background

The Claimant was crossing a residential road in London when he was hit by the uninsured First Defendant (D1) who was fleeing the police. The Claimant sustained life changing injuries. The Motor Insurers Bureau, involved in proceedings as Second Defendant (D2), admitted primary liability but pleaded contributory negligence.

This issue was heard as a preliminary issue before HHJ Gargan.

It was held that at the time of the collision, the speed limit on the road was 20mph. D1 was travelling at about 40 mph at the time of impact. Had he had been driving at 20mph, the Claimant would have had time to cross safely. D1 would also have been able to stop at a safe distance if he had been driving at this speed and had braked when the Claimant left the kerb.

Considering the issue of contributory negligence, HHJ Gargan found that the Claimant would have looked to his right before the leaving the pavement. He would have had a clear view of D1’s car, approximately 42 metres away. The judge concluded that it should have been apparent to a reasonable 13-year-old that the vehicle was travelling faster than usual and represented a source of potential danger. He could have waited for it to pass.

Furthermore, had a reasonable 13-year-old commenced crossing the road, HHJ Gargan considered that they would have kept their eye on the speeding car, so that they could hurry across the road if necessary. This “culpable misjudgment” could not be ignored but it was at the very low end of the scale when balanced against the actions of the First Defendant. The appropriate reduction was 10%.

Appeal

The Claimant appealed the decision on three grounds

1. The judge had equated the Claimant’s view of the road/vehicle with that of the bystanders
2. The judge should not have found the Claimant shared responsibility for the accident
3. The judge was wrong to find, that in the event the Claimant shared any responsibility, that it was equitable to make a reduction in damages

On the first ground, Lord Justice Nugee found HHJ Gargan had not made the mistake of equating the bystanders’ viewpoint with that of the Claimant. His judgment had made clear that the speed of the car was apparent, and a reasonable 13-year-old should have appreciated that danger. He did not expressly equate the view of the Claimant with that of other witnesses. This ground of appeal was dismissed.

On the second ground, HHJ Gargan had held the Claimant was “not guilty of mere inadvertence but of failing to appreciate, as he should have done, the speed of [D1’s vehicle] and the danger it posed to him, and failing to wait until it had passed.” The Claimant submitted that his misjudgment was not blameworthy and therefore, he did not share in responsibility for the accident.

Lord Justice Nugee determined it was reasonable for HHJ Gargan to conclude that the Claimant’s “misjudgment was culpable, which means the same thing as blameworthy.” There was no basis on which the Court of Appeal could properly hold that that was not a conclusion open to HHJ Gargan.  The second ground of appeal was dismissed.

As to the final ground, the Claimant argued that his failures were totally eclipsed by the conduct of the driver. It was submitted that the failure to ascertain the speed of D1’s car was fractional (estimated at 0.18 seconds). By comparison, D1 was speeding in a reckless manner with complete disregard for others and was responsible for the gravity of the accident.

The Court of Appeal found that the judge “was fully alive to the egregious conduct” of D1 but also concluded that the Claimant’s “culpable misjudgment could not be wholly ignored”. Whilst it was common ground that 10% “was an unusually low reduction” there was no basis for the Court of Appeal to say it was not open to the judge to adopt it. There is nothing in the Law Reform (Contributory Negligence) Act 1945 to suggest a 10% deduction is not permissible.

What we can learn

• It is accepted by the Courts that children do not have the same ability to perceive danger as adults, and thus where the child cannot be expected to fully understand the dangers of the road, contributory negligent may not usually attach. However, the older the child, the more responsibility expected. This case can be compared to other cases involving other older children/young teenagers.  In Grant v Dick [2003] All ER (D) 400 (Feb), a 14-year-old was found 40% responsible for her own injuries having ran across a dual carriageway.  It was held that the driver should have seen the children, slowing accordingly and also sounding the horn.  In Honnor v Lewis [2005] All ER (D) 374 (Apr), an 11-year-old was 20% responsible having stepped out in front of the vehicle. The driver was held to have failed to appreciate the location, and also failing to slow down.
• In those cases, whilst there were failures on the part of the drivers, they were not driving in the same erratic and dangerous fashion as Mr McDonagh, which gives an indication as to why the proportion of contributory negligence was relatively low by way of comparison.
• Referring to the question of ‘fault’ within the confines of contributory negligence, Lord Justice Nugee referred to the quote of Viscount Simon in Nance v British Columbia Electric Railway Co Ltd [1951] AC 601, which summarises the position neatly:

"But 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 this want of care, to his own injury."