Zenith Personal Injury Current Awareness


14 September 2018

Bronia Hartley

Caine Steven John Ellis (A Child by his Grandmother & Litigation Friend Janey Titley) v Paul Kelly (Defendant/Part 20 Claimant) & Violet Ellis (Part 20 Defendant) [2018] EWHC 2031 (QB)

In this case the defendant driver admitted liability for personal injury suffered by the eight-year-old claimant whom he hit at speed. However, he sought a finding of contributory negligence against the claimant and claimed a contribution from the claimant's mother under CPR Pt 20. 

The claimant had gone to a playground with his cousins. His mother had started allowing him and his sister to go out without adult supervision, but she always told them to stay together, to stay within a defined area and to be careful. One of the Claimant’s cousins left the playground to go to a nearby skateboard park, which involved crossing a lane with a zebra crossing.  After a time the claimant left the playground on his own to join his cousin but then decided to return to the playground.  As he did so he ran towards the crossing, entering the road at an angle just before it. He looked at the defendant's car but continued running. He was knocked down by the defendant and suffered a severe brain injury.

The defendant had been travelling too fast and admitted primary liability.

The defendant argued that he had limited time to react; that any driver would have been placed in a difficult situation by the claimant’s actions; and that the claimant ought to be held contributorily negligent.  Furthermore, he sought a contribution from the claimant's mother on the basis that she had allowed him to go out without proper supervision.

As regards contributory negligence, the court held that there was no hard and fast rule as to the age at which a child could be found guilty of contributory negligence (Gough v Thorne [1966] 1 W.L.R. 1387 followed). The standard of care was measured by that reasonably expected of a child of the same age, intelligence and experience. The claimant's previous experience of the lane was likely to have been that it was a safe place to be and that there was a specific crossing point.  His previous experience would have been that cars approaching the crossing point would stop and it was reasonable to infer that he would have expected the defendant to do so.  It was difficult for a child of eight to judge the stopping distance or to ascertain that a car might be travelling at such a speed that it would be unable to stop in time. The claimant’s misjudgement had to be balanced against reckless conduct by the defendant.  It would not be just and equitable to find contributory negligence in those circumstances (see paras 57-58, 60, 62 of the judgment).

As regards the contribution claim against the claimant's mother, the claimant's mother had told the children to stay together.   She had been entitled to regard the lane as a safe play area and had taken reasonable precautions by giving the claimant road safety instructions.  Holding her responsible would impose far too high a standard on an ordinary parent making ordinary decisions in the course of parenting as to how to keep a child reasonably safe while gradually allowing them more responsibilities and freedoms (Surtees v Kingston upon Thames RBC [1991] 2 F.L.R. 559 followed). Natural sympathy for a parent of a child who had been catastrophically injured could not stand in the way of finding legal responsibility in appropriate cases, however it was undesirable to expand the law so as to routinely attempt to regulate decisions and actions arising in the course of normal daily parenting, particularly where parents are not reasonably able to secure insurance to guard against the risk of claims arising out of their parenting. Further, if parents were to be routinely joined to litigation such as the instant case, there would be a real risk that that would encourage an over-cautious approach to fostering growth and independence. Real caution should be exercised by courts when considering claims against parents and by insurers in deciding whether it was appropriate to join parents, with close attention being paid to the circumstances. The circumstances of the instant case were such that it would have been wholly wrong to find the claimant's mother blameworthy (paras 70-71, 75, 77-81 of the judgment).

Current Awareness

By the Personal Injury team