Assessing Contributory Negligence On A Case By Case Basis
Published date | 03 November 2021 |
Subject Matter | Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence |
Law Firm | Tughans |
Author | Ms Kathy McGillie |
In the recent Court of Appeal decision of Gul v McDonagh another (2021) EWHC Civ 1503, delivered 13th October 2021, it was determined a minor claimant could be found to be contributory negligent. In this instance the Claimant/Appellant was 13 years 8 months old and had been injured when struck by the Defendant vehicle whilst crossing a residential street.
It is clear from this Judgment claims involving a minor will turn on the specific facts. In this particular case the Court of Appeal considered firstly whether or not the claimant had failed to take reasonable care for his own safety and concluded the claimant was at fault in this respect. The Court concluded if the minor had done what he should have reasonably been expected to do i.e., wait before crossing the road or keep looking as he was crossing, the accident would have been avoided.
The Court of Appeal considered the extent by which it would be just and equitable to reduce the Plaintiff's damages award and upheld the earlier Court's decision that there should be a reduction of 10% as it found no reason to say that this was not in the range of reasonable determination.
Preceding this recent judgement was an earlier Supreme Court case of Jackson -v- Murray (2015) UKSC 5. In this case, the Claimant was also 13 years old. The Claimant had alighted from a school bus and was crossing a road when she was hit by a Defendant vehicle travelling at speed. The Lord Ordinary found the Plaintiff to be contributory negligent to the extent of 90% and on appeal the Inner House reduced the finding to 70%. The minor appealed this decision to the Supreme Court which assessed contributory negligence at 50%.
In this jurisdiction in the matter of Gavin Kelly (a minor) v Nugent (2011) NIQB 79, a 9 year old child was riding a tricycle on a narrow country road (9 feet wide). The defendant was aware of the presence of the plaintiff before the collision. Gillen J found there to be significant gaps in the defendant's evidence and she was not keeping as careful...
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