The challenge of (child) contributory negligence

When your insured runs down a pedestrian on a light controlled crossing when the lights were red (against the pedestrian) it’s always tempting to believe that a reduction, at the least, will be possible on liability. While no general principle arises out of this case, it’s a useful reminder of the challenges faced in proving contributory negligence against child pedestrians and of the factors which a court takes into account when considering such a case.

Khadija was 9 years old and was walking with her family, including her mother and an adult cousin. It was 10.35 pm and was dark. The group was crossing the road at a well-lit pedestrian crossing, against the ‘red man’. The carriageway at this point is three lanes, running north to south.  As the group crossed, some of them saw the defendant approaching from their right and they stopped in the carriageway expecting him to pass in front of them. Khadija was slightly ahead of the group and didn’t stop. The defendant, driving in excess of the 30mph limit, drove over the crossing and struck her, causing injury.

The driver’s assessment was that he could get through the crossing before the group crossed in front of him. Understandably, primary liability was admitted.

In finding that Khadija bore no contributory negligence for the accident, HHJ Bird found that Khadija’s failure to stop was not a failure to take care for her own safety, but was a momentary lapse in concentration; reading between the lines she was lulled by the group’s progress across the road and did not appreciate the approaching danger.

This case does not change the position where younger children with a better developed road sense can be found to have contributed to an accident, but it does remind us of what the authorities tell us: the court must gauge the causative potency and moral blameworthiness of a child’s conduct by reference to an average child of their age but with the individual child’s characteristics which, in this case, was a road sense and experience that was not fully developed.

Emerging from this case is an interesting and scarcely-raised point of the level of negligence that will result in a reduction for contributory negligence. Here HHJ Bird said that had he assessed contributory negligence he would have done so at no more than 10% and that, being de minimis, he would therefore have made no reduction at all.

For more information, please contact Matthew Burfield, Partner.