Children and contributory negligence: Khadija Alabady (a minor by her litigation friend Fatima Alabady v Muhammad Ali Akram [2021] EWHC 2467 (QB) - Rochelle Powell, Temple Garden Chambers & Rebecca Henshaw
The case concerned the trial of a preliminary issue to determine whether a 9-year-old Claimant was contributorily negligent, and if so, the level of any consequent apportionment.
The Claimant had been a pedestrian with her mother and cousins when, after crossing a busy road on a “red man”, she was struck by the Defendant’s vehicle. Her mother’s evidence was that as the group began to cross the road, no car was in sight. The group stopped when they saw the car, the Claimant continued.
The Defendant’s evidence was that he had seen the group but thought that they would stop before getting to his lane, having seen him approach. His evidence was also that he had thought they would not get to his lane before he passed them. He did not think he had braked until after the collision. The Defendant had been travelling at 43mph in a 30mph zone, with a collision speed of around 33mph.
Findings
HHJ Bird found that the decision to cross the road was very unlikely to be the Claimant’s own, and that she was distracted. She carried on for only 1.32 seconds before the collision. She did not, as had been argued by the Defendant, move out deliberately.
The law relating to child claimants was then reviewed. Following Ellis v Kelly [2018] 4 WLR 124, HHJ Bird held that there was no reason why the Claimant could not be judged by the standard of other children her age. It was open to the court to find that she had been negligent. However, in assessing contributory negligence the Court had to consider what was just and equitable in the circumstances. This involved, first, a consideration of whether the damage caused was partly the fault of the claimant and, second, the appropriate apportionment in the circumstances. Causation is the decisive factor in determining the first question, which involves no direct comparison of fault. The second question was to be determined by reference to the relative causative potency and moral blameworthiness of each party.
Whilst noting that cases are fact specific, the judge found the comments of Lord Denning MR in Gough v Thorne [1966] 1 W.L.R. 1387 instructive [29]:
“A judge should only find a child guilty of contributory negligence if he or she is...
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