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Infant pedestrians: can you blame the parents?

Ellis v Kelly & Anor
High Court (QB)
31 July 2018

The court declined to make a finding of contributory negligence against an 8 year old boy involved in a road traffic accident and dismissed the contribution claim against his mother. The claimant's momentary misjudgement had to be balanced against the reckless conduct of the defendant, and it would be undesirable to routinely attempt to regulate decisions and actions arising in the course of normal daily parenting. Edward Cleary reviews the judgment in the High Court case of Ellis v Kelly (2018).

Facts

The accident occurred on 20 September 2008 near to a zebra crossing on Gospel Lane in Birmingham, which was a quiet road with a children's playground on one side and a skateboard park on the other.

The claimant was 8 years and 8 months old. For that summer or perhaps a little before, he had been allowed to go out without adult supervision, but only if accompanied by his older cousins. His mother had told him to be careful, watch the road and stay with the others.

The accident occurred when the claimant had left the playground to find one of his cousins. He was seen to cross the road at the zebra crossing and then turn left towards the skateboard park. It was inferred that the claimant did not find his cousin at the skateboard park or the nearby shop and decided that he should return to the playground.

The claimant was struck by the defendant's car as he crossed the road and sustained a severe brain injury. Primary liability for the accident was admitted by the defendant's insurer and the defendant was not called to give evidence at trial.

Findings

Mrs Justice Yip made the following findings of fact in respect of the accident circumstances:

  • The claimant ran across the road diagonally, entering before the zebra crossing. He looked straight at the car but carried on running. He was about one third of the way across the road at the point of impact.

  • The defendant who was a local man and knew the area was travelling much too fast and his passenger had told him to slow down. The speed of his car was more than 40 mph on approach to the crossing.

  • The claimant would have been obscured from the defendant's view until he was 13.4 metres from the point of impact. He would have been on the pavement for 1.9 seconds and in the road for 1.1 seconds.

  • The defendant did not brake heavily but steered to the right at the last moment.

  • Had the defendant been driving at or below the 30 mph speed limit, even allowing a perception-reaction time of 2 seconds, he could have reacted and stopped in time.

  • A safe speed at this location and at this time was no more than 20 mph. A perception-reaction time of as long as 2 seconds would not be reasonable in that state of heightened alertness.

The following findings of fact were made in respect of the claimant's road safety awareness:

  • The claimant's mother had taught him about road safety in a practical way. She taught him to wait for cars, find a safe place to cross and use a crossing if available.

  • The claimant's mother thought he was sufficiently sensible to go out with his cousins in a controlled way. He had limited experience of taking responsibility for himself on the road.

  • It had not been discussed with the claimant what he should do if one of his cousins were to go off as that was not something they would be expected to do.

  • The claimant's experience of cars in the Gospel Lane area was likely to have been that they travelled slowly and cautiously.

Contributory negligence

There is no hard and fast rule as to the age at which a child may be found guilty of contributory negligence. The standard of care is to be measured by that reasonably expected of a child of the same age, intelligence and experience.

The defendant relied upon the High Court decision in AB v Main (2015) where a finding of 20% contributory negligence was made against a child aged 8 years and 10 months, however Mrs Justice Yip felt that facts of AB were quite far removed from the instant case and a finding against a child of that age was "uncommon".

The thrust of the defendant's case was that the claimant ran out into the road when the car was plainly close and continuing to approach. It was submitted that the claimant had acted contrary to the instructions that had been drummed into him to by his mother.

Mrs Justice Yip found that it would not be just and equitable to make a finding of contributory negligence in these circumstances.

The claimant was crossing the road in the vicinity of a zebra crossing and encountered a speeding car.  He looked straight at the car yet carried on running, the inference being that he misjudged the car's speed and/or distance. The claimant's momentary misjudgement had to be balanced against the reckless conduct of the defendant.

Contribution claim

The defendant did not pursue the contribution claim, the sole purpose of which was to disrupt the gratuitous care claim, with quite the same vigour as had appeared at the outset.

Mrs Justice Yip accepted that the claimant's mother was a responsible mother who took proper care of her son's safety. She was letting him taste independence. No matter how careful a parent is, it is impossible for children to be completely protected from risk.

However, the defendant's position was not that the claimant should not have been allowed to go out with his cousins, but rather that his mother should have ensured that the children had sufficiently clear and detailed rules.

The claimant's mother had told the children to stay together. She was entitled to regard Gospel Lane as a safe play area. She took reasonable precautions and the events of that day were unusual.

Mrs Justice Yip found that holding the claimant's mother responsible would impose far too high a standard on an ordinary parent making ordinary parenting decisions in the course of parenting as to how to keep her child reasonably safe while gradually being allowed more responsibilities and freedoms.

The defendant's suggestion that it cannot be a reasonable outcome for a child to be too young to be held contributory negligent but for a parent not to be responsible for permitting the child to be cross the road unsupervised was rejected in favour of each party's responsibility being considered separately by reference to the appropriate standard of care.

Comment

This case is consistent with those which have gone before in that it does not seek to set any hard and fast rule as to the age at which a child can be found contributory negligent. Each case will continue to be determined on its own facts looking at the child's age, experience and intelligence. However, insurers should be mindful that a finding of contributory negligence against a child as young as 8 may not be considered just and equitable.

Mrs Justice Yip also preached caution when considering contribution claims against parents who are not routinely insured against such risks. She suggests that an increase in these type of claims could interfere with parents' assessments of when it is appropriate to allow children freedom to foster growth and independence.

There are also practical considerations as well. The inclusion of a parent in the litigation may mean that the child cannot use one of the most appropriate litigation friends and may delay meaningful settlement negotiations until liability is resolved. It could also legitimately influence a parent's decision as to whether to personally care for the injured child or seek professional care which will be more expensive.

This case does not of course signal the death knell of contribution claims against parents. There remain circumstances in which a finding of legal responsibility against the parent of a catastrophically injured child can and should be made.

Mrs Justice Yip specifically referenced the case of Williams v Williams (2013) in which the Court of Appeal upheld a finding that the mother should contribute 25% for failing to use an appropriate child restraint, although the insurer had agreed that the gratuitous care claim would not be affected by the finding. DWF's Graham Dickinson acted for the successful insurer in that case and commented in this update.

The position remains that natural sympathy cannot stand in the way of finding legal responsibility in appropriate cases but it remains important to have regard to policy and commercial considerations, in addition to the factual matrix.

Contact

For further information, please contact Edward Cleary, Senior Associate on +44 (0)161 604 1529 or at edward.cleary@dwf.law

By Edward Cleary

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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