Ellis v Kelly & Anor

Contributory negligence in a child pedestrian case requires a fact-sensitive assessment of the child’s conduct by reference to the standard reasonably expected of a child of the same age, intelligence and experience. The court must consider both causative potency and relative blameworthiness. A momentary misjudgement by an eight-year-old may not justify a reduction where the child encounters driving that is wholly outside his experience. A parent’s responsibility is assessed separately by the standard of a reasonable parent. Foreseeability alone does not establish breach of duty. Courts should exercise real caution before imposing liability for ordinary parenting decisions, including decisions gradually to allow a child greater independence.

The claimant, an eight-year-old child, suffered severe brain injury after running into the road and being struck by a car driven by the defendant. Primary liability was admitted, but the defendant alleged contributory negligence and brought a Part 20 claim against the claimant’s mother, alleging inadequate supervision and guidance.

The issues were whether the claimant should bear part of the responsibility for the accident and whether his mother had breached a duty of care by allowing him to go out with older cousins in a controlled way.

1. Contributory negligence. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 requires a reduction only to the extent that is just and equitable having regard to the claimant’s share in responsibility. The assessment involves the respective causative potency of the parties’ conduct and their relative blameworthiness. The approach is broad and founded on common sense.
2. Standard applicable to a child. There is no fixed age below which contributory negligence is impossible. A child’s conduct must be judged against that reasonably expected of a child of the same age, intelligence and experience. The fact-sensitive comparisons in Andrews v Freeborough [1967] 1 Q.B. 1 and AB v Main [2015] EWHC 3183(QB) illustrated that different outcomes depend on the circumstances.
3. Although the claimant had looked towards the car and continued running, his conduct was a momentary misjudgement. He was heading towards a zebra crossing and encountered a vehicle being driven at a speed wholly outside his experience. The defendant’s reckless driving had much greater causative potency and blameworthiness. It was not just and equitable to make any reduction for contributory negligence.
4. Parental responsibility. The claimant’s mother had taken reasonable precautions by teaching road safety, restricting the area in which the children could go and instructing them to remain together. Foreseeability is necessary but insufficient to establish a duty or breach. The standard applicable to the child and the standard applicable to the parent are separate. The mother’s decision to allow controlled independence was reasonable.
5. The court should be cautious about extending liability into ordinary family life. The Part 20 claim was dismissed, and judgment was entered for the claimant with damages to be assessed on a full-liability basis.

First-instance judgment. No earlier decision in the same proceedings was stated in the judgment.