23 June, 2021
The Court of Appeal will be asked to review a decision the High Court made in February this year in the case of Gul v Mcdonagh, where a 13-year-old was hit by Mr McDonagh who was fleeing from the police in his car. He was doing 45 in a 20 zone. There were speed bumps along the road. On the face of it, an open and shut case, however Mr McDonagh's Insurers sought to contest the case, arguing that Gul's claim should be reduced because he was contributory negligent. He was wearing headphones, presumably listening to music. The vehicle would have been visible, he should have kept an eye on it and should have appreciated it was travelling quickly.
It is often argued a very young child cannot be guilty of contributory negligence. There is no precise definition of when this changes for an older child. A court should only find a child guilty of contributory negligence if they are of an age where they would be expected to take precautions. The older the child the more likely they have experience of such matters. Each case turns on its own facts. There has to be some blame on their part.
The case of Ellis v Kelly in 2018 provides some help. Master Ellis was 8 when he ran diagonally across a road towards a zebra crossing, when he knew a car was approaching. The court concluded that it was reasonable to infer he believed the car would stop at the crossing. He would have misjudged the speed and its ability to stop in time. There was no finding of contributory negligence.
Gul sustained catastrophic and life changing injuries. The insurers for Mr McDonough sought a reduction of 25%. The Judge disagreed and found Gul was 10% contributory negligent. His claim is likely to be worth many millions. A 10% reduction will save the insurers a substantial amount.
If you, a friend or family member have been a victim of pedestrian road accident you may be entitled to recover your losses to help with your recovery. In a serious case like the one described above, catastrophic injuries can change the life of an individual and their family. They may need support, equipment and adapted accommodation. Here at Forbes we offer no win no fee advice. Please call one of the team if you have suffered injuries in a pedestrian road traffic accident.
For more information contact John Bennett in our Personal Injury department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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