Child’s Play: Gul v Mcdonagh ((2021) Ewhc 97)

February 5, 2021

By William Waldron QC

For anybody grappling with the often tricky question of whether to concede some finding of contributory negligence in a case involving a child and, if so, what, the case of Gul is worth a look.  It is not only the circumstances of the claim that are interesting but also the fact that the judge, HHJ Gargan, sitting as a judge of the High Court, set out very conveniently the principles upon which the court approaches ‘children cases’.

The accident occurred when the 13-year-old Claimant emerged into the roadway just in time to be struck by a car driven by a 39-year-old man, who was fairly determined to get away from the police.  To that end, he had been driving at about 45 mph in a 20 mph zone, which had speed bumps at various points along its length, in a manner described by the Recorder sentencing him in the Crown Court as ‘appalling, reckless and furious’.  Not a good start for the insurer contesting the civil trial on the issue of contributory fault.  Be that as it may, it seems the Claimant very probably looked to his right as he approached the kerb but, at that point, his view was somewhat obstructed.  However, by the time he started to cross the road, he had an unobstructed view of the on-coming vehicle and, as the Learned Judge found, ought to have realised it was travelling unusually quickly and kept an eye on it.

We all know that the starting point on the question of contributory fault is section 1 (1) of the Law Reform (Contributory Negligence) Act 1945.  Rather fewer of us remember the dicta in Davies v Swan Motor Co ((1949) to KB 291) where it was said:

‘Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation.  The amount of the reduction is such an amount as may be found by the court to be ‘just and equitable’, having regard to the plaintiff’s ‘share in the responsibility’ for the damage.  This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness.’

Again, whilst everybody appreciates that a child is not expected to take the same steps to look after themselves as would an adult, I, for one, need to remind myself that probably the most helpful guidance on that point came from Gough v Thorn ((1966) 1 WLR 1387).  Lord Denning said this:

‘A very young child cannot be guilty of contributory negligence.  An older child may be.  But it depends on the circumstances.  A judge should only find a child guilty of contributory negligence if he or she is of such an age to be expected to take precautions for his or her safety: and then he or she is only to be found guilty if blame should be attached to him or her.  A child has not the road sense or experience of his or her elders.  He or she is not to be found guilty unless he or she is blameworthy.’

It is probably worth noting here the stress laid upon blameworthiness by Lord Denning.  Even if the actions of the child have been causatively relevant, if one is representing a young person, greater analysis of, and emphasis upon, the element of blameworthiness is required.

In the same case, Lord Salmon said:

‘The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether an ordinary child of 13 could be expected to have done more than this child did.  I did say ‘ordinary child’.  I did not mean a Paragon of prudence; nor do I mean a scatter – brained child; but the ordinary child of 13.’

Once more, that principle is something of which we are probably all aware.  Consider the age of the child and then ask what is to be expected of the ‘ordinary child’ of that age.   It does no harm to know where to find the quote!

The higher courts have often said that it is unhelpful to quote from too many authorities in ‘running down actions.’  That is true.  On the other hand, it is inevitable that one will look at earlier cases in an effort not simply to see what sort of deductions different courts have made, in different circumstances, and for different ages of child but also to find judicial pronouncements that might come in handy. Ellis v Kelly ((2018) EWHC 2031 (QB)) is one such case.  The excellent Yip J (a former member of Exchange Chambers, of course), dealing with the case of a boy aged eight years eight months at the time, who had run diagonally across a road towards a zebra crossing when he knew a car was approaching, said this:

‘Therefore, the only reasonable inference is that he believed the car would stop at the crossing for him.  That involved misjudging the car’s capacity to stop in time.  The Green Cross Code confirms that ‘Many children cannot judge how fast vehicles are going or how far away they are’.  It seems to me that it is even more difficult for a child of 8 to judge the stopping distance for a car so as to understand that while the car should stop at the crossing it may be travelling at such a speed that it is unable to do so in time.  I find that this was a case of momentary misjudgement on (the child’s) part balanced against reckless conduct on the part of the defendant, whose driving was outside Caine expectation based on his understanding and experience.  In my judgement, it would not be just and equitable to make a finding of contributory negligence in the circumstances and I decline to do so.’

It is worth remembering that, when dealing with young children, one must bear in mind their experience of life and their inability properly to judge distance, speed, time and the likely actions of any particular driver.  You are probably in a healthy position if the driver in question has been prosecuted and sent to jail!

Sadly, the Claimant in Gul sustained catastrophic injuries.  From the brief description of them contained within the judgement, it looks likely that he will need round-the-clock care and an expensive package of support and case management; together with therapies and very probably adapted accommodation.  No surprise then that the insurer saw merit in attempting to secure a deduction for contributory fault that was as high as possible.  Leading Counsel for the insurer had suggested at the start of the case in his Skeleton Argument that the appropriate deduction would be 25%.  By the end of it, he conceded that 25% would be too much, giving a possible range but nevertheless asking for a deduction of 20%.  My instinct is that, pre—trial, the insurer was unwilling to accept a deduction any less than 20% and the Claimant felt he might win outright.  The Learned Judge concluded in the following way:

‘Whilst deeply sympathetic to the Claimant, I do not think his culpable misjudgement can be wholly ignored.  However, when balanced against the conduct of the First Defendant it falls very much at the lowest end of the scale suggested by the Second Defendant.  I consider that the just and equitable reduction in all the circumstances of this case is 10%.’

If my instinct about negotiations on compromise in the case are correct, whilst the Defendant insurer will save £100,000 on every million pounds awarded, keeping the deduction to only 10% for a 13 year-old will probably be viewed as a successful outcome by the Claimant’s team.