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Can an 8-year old child be contributory negligent? - Ian Peters, Anthony Gold

22.09.18. The short answer is yes, but that was not the finding of Mrs Justice Yip when she handed down her Judgement in the case Master Caine Ellis v Mr Paul Kelly and Mrs Violet Ellis on 31 July 2018.

Caine was involved in a road traffic accident on 20 September 2008, when he was 8 years old. He had been struck by Mr Kelly’s car whilst crossing a road close to his home. He suffered a traumatic brain injury and is unlikely to be able to live interpedently or undertake any kind of paid employment. That is as far as the Judgment commented on the value of the claim. Primary liability was admitted and the live issues at trial were firstly, whether Caine should be found contributory negligent for his part in the accident and secondly, whether his mother, Violet Ellis, should bear any responsibility.

The Facts

Caine comes from a close family. His mother, allowed him to him to go out to the local park without adult supervision if he was accompanied by one of his older cousins, who were 10 and 11 years old respectively. When they were out, the children were encouraged to stay together, and they had a mobile phone with them, so they could keep in contact with their parents in case of an emergency.

Caine’s mother had taught him the Green Cross Code as she walked him to school and everywhere else. She did not allow him to go out without an adult until she thought it was safe.

On the day of the accident, Caine had gone to the park with his 11-year old cousin, Cyrus. After they had been in the park for some time, Cyrus had left to attend a skate park nearby, leaving Caine with his 10-year old cousin, Chloe. A short while later, Caine wanted to go to the skate park as well and eventually left the park by himself to find Cyrus...

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