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High Court Decision: Child Pedestrian Was Not Contributory Negligent

Published: 21st September 2021

Our team at Serious Law LLP are recommended as a Top Tier firm by the Legal 500 and work exclusively with clients who have serious injuries. Over the last 30 years, we have dealt with some of the UK’s largest and most complex serious injury cases. Our work has given us great insight into the risks vulnerable road users face.

Summary

This case considered whether, Khadija, a 9 year old girl, was negligent, and contributed to her own serious injuries when she walked in front of a speeding car. She was in a group, including adults, crossing the road. The other members of the group slowed down when there was an oncoming car, however Khadija carried on and the point of impact was about 2m in front of the group.

Serious Law were successful in persuading the Judge who determined that this was a momentary error of judgement by Khadija, not amounting to contributory negligence. If she had been at fault, contributory negligence would have been no more than 10% and de minimis – there would have been no deduction made.

"This difficult case happened on what should have been an evening of family celebration for the festival of Eid but instead ended in tragic circumstances. It is acknowledged that the circumstances of accident warranted both parties engaging in a thorough investigation relating to liability issues. However, as the evidence became clear and both parties have the benefit of accident reconstruction expert evidence, that was agreed on all key issues, it should have been clear to the Defendant that arguing for contributory negligence on the part of a very young child, and in the particular circumstances of the case, was going to present them with some challenges. It is pleasing that the exceptionally experienced judge hearing the case ultimately agreed with the Claimant's case. The focus can now be entirely on supporting the Claimant's ongoing rehabilitation and ensuring the outcome of the case acknowledges and caters for the long term consequences of the serious accident related injuries. Christopher Lecky, Solicitor and Senior Associate

Christopher Lecky (Solicitor and Senior Associate at Serious Law) worked on the case, and has extensive experience in dealing with all types of serious injury and major trauma cases arising from a broad range of circumstances including road traffic accidents, clinical negligence, accidents at work, public liability cases and criminal assault. He has personally handled cases from inception to conclusion with multi-million pound settlements.

Overview of the Case

The court must consider “fault” and whether, as in this case, a child has in part caused the accident. In conducting this analysis, the age and characteristics of the claimant, the particular circumstances in which the claimant found herself and the moral blameworthiness of each party need to be taken into account. In terms of road sense and experience, it was ultimately accepted by the Court that this would not be fully developed in child with the same age and characteristics of the claimant."

It was found that due to the claimant being 9 years old, and taking into consideration the specific factual circumstances, it was likely that she was easily distracted, and not completely focused on her immediate surroundings. The judge considered there was no merit in the Defendant's argument that the claimant made a deliberate decision to move away from the group.

"A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances… a child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy Lord Denning MR - Toropdar v D [2009] EWHC 2997

The judge confirmed “When on the crossing, Khadija’s momentary lapse of concentration which caused her to move ahead of the group does not in my judgment amount to fault.” It was further added that it would be unreasonable to expect a girl of her age to keep a close eye on the group, and stop crossing just over one second earlier in order to avoid the collision.

Conclusions

  • If the driver had been travelling at 30mph, he would have been able to stop 19m infront of the crossing. However, the defendant stated that he ‘took a gamble’ from his own assessment of their speed, and decided to proceed, confident in his judgement that he would pass them before they crossed his path.
  • The claimant was not under immediate supervision of her mother, as she was positioned next to her cousin and therefore separated from her by 2 other children and an adult. It was also considered that, as she was on holiday, the claimant may have been excited to get to the supermarket that was the destination on the walk. She was also wearing ‘shoes with wheels in the soles’, which may have been a source of excitement for her. She may therefore have been more likely to be distracted.
  • Because the claimant was distracted when crossing the road, she carried on (as agreed by experts) for just 1.32 seconds after the other in the group had stopped, before the collision occurred. Her mother gave evidence to say she raised her hand in attempt to stop the oncoming car.
  • It was found that Khadija was not at “fault” and in the alternative, any fault would be de minimis. Therefore it was concluded that there was no contributory negligence.

If you would like to read the full details of the case you can find the full version here. Alternatively, you can read the version provided by Gordon Exhall via Civil Litigation Brief.


We wish all road users safe travels. However, if you or any of your family or friends are involved in an accident on the roads, and require legal assistance, please do not hesitate to contact us. We can also be contacted on 03300580377 for a free, confidential, conversation with an experienced serious injury solicitor. Alternatively, please send us your contact details to enquiry@seriouslaw.co.uk and we’ll call you back.


Reference Material

Much of the information within this article has been sourced from Byrom Street and Civil Litigation Brief which has been adjusted accordingly. All direct quotes used in this article originate from aforementioned materials.