Gul v McDonagh & Anor

Contributory negligence is assessed by asking whether the claimant was at fault, whether that fault contributed to the damage, and what reduction is just and equitable. The assessment balances blameworthiness and causative potency. A child is judged by the standard reasonably expected of a child of the same age, intelligence and experience, rather than by the adult standard. A 13-year-old pedestrian who has a clear view of an unusually fast vehicle may be expected to wait for it to pass or to keep it under observation while crossing. The extreme blameworthiness of a motorist may substantially reduce, but does not necessarily eliminate, a child’s contributory responsibility.

The claimant, aged 13, suffered catastrophic injuries when struck while crossing a residential road by a vehicle travelling at about 40 mph in a 20 mph area. The second defendant, which had a contingent liability because the driver was uninsured, admitted primary liability. The preliminary issue was whether the claimant was contributorily negligent and, if so, the appropriate reduction in damages.

The court considered whether the claimant had failed to observe the vehicle, appreciate its unusual speed, or keep it under observation while crossing. It also considered the relevance of the claimant’s age, experience, headphones, road layout and the driver’s exceptionally dangerous conduct.

1. Applicable principles. Under Law Reform (Contributory Negligence) Act 1945, section 1(1), contributory negligence requires an assessment of whether the claimant was at fault, whether that fault contributed to the damage, and what reduction is just and equitable. The reduction depends on both blameworthiness and causative potency, following Davies v Swan Motor Co [1949] 2 KB 291.
2. Standard for a child. The court applied the guidance in Gough v Thorne [1966] 1 WLR 1387. A child is judged against the conduct reasonably expected of an ordinary child of the same age, intelligence and experience. The claimant’s age and experience justified expecting a degree of road sense, although not the judgment of an adult.
3. Fault and causation. The claimant was unlikely to have seen the vehicle while six metres from the kerb and its view was partly obstructed at two metres. He was not negligent merely for failing to look right before reaching the kerb, provided he checked before stepping into the road. However, when he reached the kerb he had a clear view of the vehicle, which was about 42 metres away and travelling unusually fast. A reasonably careful 13-year-old should have waited for it to pass. Alternatively, having started to cross, he should have kept it under observation and accelerated over the remaining 30 centimetres. Either course would probably have avoided the collision.
4. Authorities and apportionment. Craven v Davies [2018] EW HC 1240 (QB) and Ellis v Kelly [2018] EWHC 2031 (QB) were distinguished on their materially different facts, including the distances involved, lighting, the claimant’s age and the presence of a zebra crossing in Ellis. The driver’s conduct was exceptionally blameworthy and highly causative, but the claimant’s culpable misjudgment could not be ignored. The just and equitable reduction was 10 per cent.
5. Order. Liability was apportioned 90:10 between the defendants’ side and the claimant.

First-instance decision. No prior appellate decision was stated in the judgment.