Should a parent bear a portion of liability? (Contributory negligence involving minors)
The above case law has dealt with a poignant element in the concept of contributory negligence under the law of tort.
In an event that a child is in the presence of a parent on a busy road and then suffers a road traffic accident, would the parent have any liability at all, in addition to the offending motorist? Or does liability lay with the motorist only?
The case above dealt with this question whilst further confirming the trite law as established by common law.
The case in question had taken place on the 16th August 2018 where a young girl called Khadija, aged 9 was crossing the road with her mother (Fatima) and cousins. The group had decided to cross the road when the “red man” was indicating that pedestrians should not cross. Khadija was positioned a bit further away from the group when the Defendant, Mr Akram who was proceeding at 33mph on a 30mph zone had struck into Khadija, causing injuries.
It is well established in common law that the court is quite reluctant on imposing a higher standard of care on a parent. It was held in Ellis v Kelly & Anor [2018] EWHC 2031 as was referred to by Justice Yip in this case; that the law should not put forward a high ‘standard’ on an “ordinary parent making ordinary decisions in the course of parenting as to how to keep her child reasonably safe while gradually being allowed more responsibilities and freedoms.” This therefore suggests that it would not be appropriate for the court to dictate how a child should be bought up by their parents.
Fatima who was the mother in the case in question, was present at the time of the accident when Khadijah was injured, hence she had a duty of care to take reasonable steps in protecting Khadijah. The Defendant may however argue ‘contributory negligence’ on the parents behalf and this may in turn reduce the claimants damages by 20% – as per AB v Main [2015] EWHC 3183 (QB) which a Defendant may use in their defense.
However Justice Yip reasoned that this is “too far stretched” and that it is more important to “focus on the age, intelligence and experience” to be expected of a child of the same age when assessing standard of care. This concept derived from Gough v Thorne [1966] 1 WLR 1387, where it also stated that children cannot be responsible for contributory negligence, however with the exception that if an older child did the same action, it may be argued whether more precautions could have been made in order to prevent or minimize the damages of the accident, based upon knowledge and maturity. As the judgment in question states, Khadijah was fairly young and she was excited
“at the prospects of what treats might be there” in Asda which was on the other side of the road. This can cause her to be excited and distracted which is something that Fatima may not have noticed and the consequences that came therefore were unexpected. This is usually a normal reaction from a child that is excited at her age. Additionally, the fact that the claimant is a child determines that any contributory negligence is overridden.
Although Fatima was present, she could not judge the likelihood of Khadijah misjudging an oncoming vehicle. Justice Yip noted that “no matter how careful a parent is, it is impossible for children to be completely protected from risk”. For example, in Ellis v Kelly & Anor [2018] EWHC 2031 (QB), it stated that the child was allowed to go out unsupervised, the child was also aware of the road safety which the mother had previously explained. Despite the fact that the child was informed about road safety from his parents, he was still hit. However, although the Defendants argued contributory negligence against the parents, the courts held there was no liability towards the parent.
In contrast, the Defendant may argue contributory negligence on behalf of the parents whilst relying upon Williams v Williams [2013] EWCA Civ 455 where a child was involved in a road traffic accident and they were strapped into an inappropriate child seat as appose to the other child seats in the vehicle at the time of the accident. The judge had stated that injuries could have been minimal or entirely avoided if the child was placed in the other child seat which contained a five point harness. The court had later taken into account Section 2(1) of Civil Liability (Contributions) Act 1978 which states that “the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage”. The court had also taken into account the decisions made in Froom v Butcher [1976] 1 QB 296, and had concluded that the most appropriate contribution should be 25%. Applying this to the case in question, the Defendant could argue that the mother (Fatima) could have instructed the child to wait and cross the road when there was a ‘green man’, this may have prevented the accident from occurring.
However it is highly unlikely that a court would hold a parent liable, in a case similar to this case, whilst in Williams v Williams the factor that swayed the court’s decision was the fact that a wrong child seat was placed whilst in contrast, in this instance there was no identifiable negligence on the part of the parent compounded by the fact that courts are reluctant to superimpose a superficial duty of responsibility on a parent in regards to road safety.
And as such, to conclude, I believe that attributing a percentage of liability on a parent in a road safety scenario, would be superimposing an unrealistic and an unreasonably high standard of care contrary to the present judicial thinking and established law. Therefore, any imputation of liability on the parent cannot be deemed as ‘just and equitable’. However, I also believe that the position of liability on a parent will differ on a case to case basis depending on the circumstances and evidence provided.
