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Child pedestrians and contributory negligence - David Knifton QC, Exchange Chambers

23/09/21. In the latest contribution to the issue of child contributory negligence, HHJ Bird (sitting as a Judge of the High Court) concluded that a 9 year-old girl, struck by a car whilst crossing a carriageway at night, was not guilty of contributory negligence. The case of Alabady v Akram [2021] EWHC 2467 (QB) raises a number of important issues in this area of the law.

The Facts

At 10.35pm on 16.8.18, Khadija Alabady (aged 9 years and 2 months) was crossing Princess Road, a major dual carriageway with 3 lanes of traffic in each direction, leading south from Manchester city centre, from its east side to its west side. She was with her mother, an adult cousin and 2 other cousins aged 11 and 9. Although they used a light controlled crossing, they began to cross when the “red man” light was showing against them. Khadija was slightly ahead and to the right of the group. The Defendant’s car, travelling at 43mph in a 30mph limit, was approaching from their right, about 75m away. The rest of the group apparently spotted the car and stopped about 3.8m along the crossing. Khadija, who was momentarily distracted, continued to cross, and was struck by the car when she was 5.8m (a little over half-way) across the carriageway. The Defendant’s evidence was that he had seen the group crossing, and assumed that they would stop before reaching his lane.

Primary liability was admitted, but a trial of contributory negligence was heard as a preliminary issue. No live evidence was called, the incident having been captured on CCTV, footage from which was analysed and formed the subject of an agreed report from accident reconstruction experts. They concluded that:

· If Khadija had looked to her right as she started to cross, she would have had a clear and uninterrupted view of the Defendant’s car, some 75m away.

· Had the Defendant been travelling at 30mph when she began to cross, Khadija would have completed her crossing without a collision.

· Had the Defendant performed an emergency stop when he saw the group, he would have been able to avoid the collision if travelling at 30mph, and may have been able to do so at 43mph.

· Had Khadija obeyed the “red man” signal, or stayed with the group, the collision would have been avoided.

The Outcome

The judge found that:

1. The standard of care to be expected of a child was to be judged by what was reasonably expected of a child of her age, intelligence and experience. There was no bar by reason of her age to making a finding of contributory negligence.

2. The issue of contributory negligence involves firstly a determination of whether the damage has been caused partly by the fault of the claimant and partly by the fault of others. The first question involves no direct comparison of fault. If the conclusion is that damage was so caused, the second question is how should the damage be apportioned, having regard to the relative causative potency and blameworthiness of each party’s actions.

3. In gauging whether a child is at fault, the court must take account of...

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