When Contributory Negligence is Applied with Minors

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27 September, 2021

John Bennett

Lancs Live recently reported on an incident involving a primary school pupil being hit by a car outside St James Primary school in Skelmersdale.

"The seven-year-old stepped out on the busy 30mph road and was hit by a car pulling out.

The girl was reportedly thrown up into the air and landed on her feet before collapsing by the busy road.

Headteacher … says she had 'a lucky escape' - but says it was an accident waiting to happen on a dangerous road.

She says she and her two predecessors have pleaded for more than 10 years for something to be done about this dangerous road on the doorstep of the school - to no avail."

This raises some interesting arguments about who is to blame, the driver or the child. In the case of Gul v McDonagh, a 13-year-old was hit by Mr McDonagh who was fleeing from the police in his car. He was doing 45mph in a 20mph zone, with 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 is examined on its own facts. There will usually be some blame on their part.

The case of Ellis v Kelly in 2018 provides some clarity on the matter. 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 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 Solicitors we offer no win no fee advice.

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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