In the recent Court of Appeal decision of Gul v McDonagh another (2021) EWHC Civ 1503, delivered 13th October 2021, it was determined a minor claimant could be found to be contributory negligent. In this instance the Claimant/Appellant was 13 years 8 months old and had been injured when struck by the Defendant vehicle whilst crossing a residential street.
It is clear from this Judgment claims involving a minor will turn on the specific facts. In this particular case the Court of Appeal considered firstly whether or not the claimant had failed to take reasonable care for his own safety and concluded the claimant was at fault in this respect. The Court concluded if the minor had done what he should have reasonably been expected to do i.e., wait before crossing the road or keep looking as he was crossing, the accident would have been avoided.
The Court of Appeal considered the extent by which it would be just and equitable to reduce the Plaintiff's damages award and upheld the earlier Court's decision that there should be a reduction of 10% as it found no reason to say that this was not in the range of reasonable determination.
Preceding this recent judgement was an earlier Supreme Court case of Jackson -v- Murray (2015) UKSC 5. In this case, the Claimant was also 13 years old. The Claimant had alighted from a school bus and was crossing a road when she was hit by a Defendant vehicle travelling at speed. The Lord Ordinary found the Plaintiff to be contributory negligent to the extent of 90% and on appeal the Inner House reduced the finding to 70%. The minor appealed this decision to the Supreme Court which assessed contributory negligence at 50%.
In this jurisdiction in the matter of Gavin Kelly (a minor) v Nugent (2011) NIQB 79, a 9 year old child was riding a tricycle on a narrow country road (9 feet wide). The defendant was aware of the presence of the plaintiff before the collision. Gillen J found there to be significant gaps in the defendant's evidence and she was not keeping as careful a lookout as she should have been given the presence of houses adjacent to the locus. The Court went on to say the fact that a child is the plaintiff does not prevent a finding of contributory negligence. The crucial matters are the child's age and understanding. Gillen J considered 9 years of age to be a borderline case. The plaintiff did acknowledge that whilst he had had no road traffic safety lessons in school until aged about 10 or 11, he did know it was dangerous to go out on to the road at this age and that his mother and father would not let him take his tricycle on to the road. The minor was held to be 15% contributory negligent.
In each of these cases, the Courts had to consider the speed of the Defendants' vehicles, the drivers' reaction time when noticing the Plaintiff/Claimant, the Minor's movements prior to the collision and the visibility of the vehicles to the Minor as they approached.
The caselaw in this area demonstrates how a particular set of facts can produce a broad range of results in terms of assessment of a minor's contributory negligence. This serves to highlight the difficulties for practitioners from a Plaintiff and Defendant perspective when advising clients as to likely outcomes with claims of this nature involving minor plaintiff pedestrians. The extent of any finding of contributory negligence remains very much dependent upon the specific facts in each individual case but also importantly the views of each individual Judge.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.