Gough v Thorne

A child is contributorily negligent only where, having regard to the child’s age and ordinary capacities, the child could reasonably be expected to take precautions for personal safety and is blameworthy in failing to do so. The standard is not that of an experienced adult with fully developed road sense. A child who reasonably relies on a grown-up’s signal to cross a road is not at fault merely for failing independently to make the checks expected of an adult.

An appellate court may reduce a damages award where the trial judge’s assessment is so excessive or erroneous that intervention is justified.

The claimant, aged 13½, was injured when a car passed through a narrow gap between a lorry and a traffic bollard as she crossed a road after the lorry driver had beckoned her and her brothers to cross.

At first instance, MacKenna J found the driver negligent but held the claimant one-third contributorily negligent. He awarded £2,750 general damages and £12 special damages. The claimant appealed on liability. The defendant appealed on quantum.

The central issues were whether an ordinary child of 13½ was contributorily negligent in relying on the lorry driver’s signal, and whether the damages award was excessive.

1. Both appeals were allowed unanimously. The Court of Appeal set aside the finding that the claimant was one-third contributorily negligent. It reduced general damages from £2,750 to £1,500, leaving total damages of £1,512 including special damage.

2. The Master of the Rolls held that contributory negligence by a child depends on the circumstances. A child should be found contributorily negligent only if the child is old enough to be expected to take precautions for personal safety and blame properly attaches to the child. The standard must reflect the child’s lack of adult road sense and experience.

3. The claimant was not blameworthy. She was crossing with her older brother after a lorry driver had stopped, signalled approaching traffic to stop, and beckoned the children across. Expecting her to look past the lorry and verify independently that no vehicle was approaching would impose an adult standard. Lord Justice Danckwerts and Lord Justice Salmon agreed. Lord Justice Salmon emphasised that the proper comparison was with an ordinary child of 13½, not an exceptionally prudent child.

4. On quantum, the Court held that the judge had taken an unduly pessimistic view of the claimant’s prognosis. The lasting shortening of the leg could probably be corrected by a raised shoe, and the pain was likely to resolve. The award was sufficiently excessive and erroneous to warrant appellate intervention. General damages were therefore reduced to £1,500.

• Court of Appeal: unanimously allowed the claimant’s appeal on liability, removing the finding of contributory negligence, and allowed the defendant’s appeal on quantum, reducing general damages to £1,500.
• First instance: MacKenna J found the defendant driver negligent, attributed one-third contributory negligence to the claimant, and awarded £2,750 general damages plus £12 special damages.