10 December, 2018
Caine Ellis (A Child By His Grandmother & Litigation Friend Janet Titley) (Claimant) v Paul Kelly (Defendant/Part 20 Claimant) & Violet Ellis (Part 20 Defendant) (2018)  EWHC 2031 (QB)
Are the parents always to blame? In 2008, Caine Ellis, then aged 8, was knocked down by a car and suffered severe brain injury. The driver's insurers admitted primary liability but contended that a finding of contributory negligence should be made against Caine and/ or his mother for allowing Caine to go out without proper supervision.
On the day of the accident, Caine was at his aunt's house with his mother. Caine had asked to go to the playground with his cousins, he was told to watch the road and stay with his older cousins. The children walked to the park but after a while, his older cousin announced he was going to the skate park. Sometime later, Caine decided to join his cousin at the skate park located on the opposite side of the road. Caine ran across the pavement, towards the crossing and did not stop. He looked straight at the car but continued running. He was not on the crossing when he stepped onto the road and was hit by the oncoming car.
Was the child contributory negligent?
The Court found that the defendant was travelling too fast; the speed limit was 30 mph and although he was not exceeding the speed limit, he was not travelling at a safe speed for this stretch of road. Caine had used the zebra crossing with his mother and knew that it was a safe place to cross the road. He also knew you should stop, look and listen when crossing the road. The Judge surmised that when Caine had previously approached this crossing vehicles had always stopped to allow pedestrians to cross. The Judge resolved that there was a "momentary misjudgement on Caine's part balanced against reckless conduct on the part of the defendant, whose driving was outside Caine's expectation based on his understanding and experience". There was no suggestion that Caine was being silly or had deliberately run in front of the car. Yip J therefore concluded that it was not just or equitable to make a finding of contributory negligence against the 8-year-old boy.
Was Caine's mother contributory negligent?
The Judge took a step back and considered the public policy implications of finding parents contributory negligent in such situations. Firstly, she noted if parents were to be joined into litigation such as this, that there would be a real risk that this would encourage an over-cautious approach to parenting which would dissuade parents from allowing children some freedom. Caine's mother had taught him the green cross code and had given him clear instructions to stay with his older cousins before going to the park. She was a responsible mother who took proper care of her son's safety. Secondly, in the event of litigation, a parent is best placed to act as the child's litigation friend and can no longer do so if joined in the litigation. This can create difficulties in exploring quantum before liability is determined and in turn inhibit rather than facilitate settlement.
In this sensible and well thought out judgment, Yip J urges Courts and insurers to exercise real caution when deciding whether it is appropriate to join parents into proceedings. Following this decision it will be difficult for Judges to justify a finding a contributory negligence in similar circumstances, unless parents owe a clear duty such as when carrying children as passengers in vehicle. Whilst each case turns on its own facts, defendants considering alleging fault on the part of a parent or young children should closely consider this judgment first.
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