Written by Serious Injury Assistant Solicitor, Coral Butterworth
A recent decision made on the 19th July 2018 reflected upon RTA claims involving minors and the necessity to consider whether fault rests with the child or parents for failing to supervise that child.
Within her judgement, Mrs Justice Yip made scathing comments with regards to the child’s mother being brought as a Part 20 Defendant in the action.
Ellis v Kelly & Anor  EWHC 2031 (QB)
The case of Ellis v Kelly & Anor  EWHC 2031 (QB) involved an eight year old child who was hit by a car while crossing the road near a pedestrian crossing.
The Claimant child and his sister had been allowed to go out to play without adult supervision on the condition that they were to always stay together and would maintain contact with their parents via a mobile phone. They often spent time with their older cousins; however, if they were unavailable, the Claimant and his sister were only allowed to stay within a specific area outside the house.
On the day of the accident, the Claimant had been at a playground, accompanied by the children but without adult supervision. During the course of the day, the children had decided to cross a quiet road to visit the skate park. The Claimant had previously crossed the road without incident but was later struck by the Defendant’s vehicle.
Independent eye witnesses gave clear and compelling evidence that the Defendant was proceeding along Gospel Lane over and above the speed limit, resulting in a loss of control.
The Defendant admitted primary liability but alleged contributory negligence against the Claimant child and his mother. The Court declined to make a finding of either.
Points for Consideration
The Defendant relied upon the decision in AB v Main (2015) where a finding of 20% contributory negligence was made against a child aged eight. However, after consideration, Justice Yip felt the facts were too far removed from the current circumstances to be relevant and that a finding against a child was uncommon.
Justice Yip determined the age, intelligence and experience to be expected of a child of the same age to be relevant when considering the standard of care. As the Claimant’s mother had given the child road safety advice – teaching him to wait for cars to pass, find a safe place to cross the road and to use a pedestrian crossing where available – and in the circumstances that the Claimant had looked straight at the car yet continued to run into the road, the inference was drawn that there had been a misjudgement by the child due to the reckless conduct of the Defendant.
In considering the Part 20 claim, Justice Yip noted that “no matter how careful a parent is, it is impossible for children to be completely protected from risk. Keeping children cooped up and not allowing them to experiment with small freedoms carries its own risk. There is a difficult balance to be struck. Different parents in different circumstances will make different decisions about how best to strike that balance. Sadly, when something goes catastrophically wrong, a parent may look back and agonise over the choice they made. The fact that, with hindsight, they would have taken a different course is very far from establishing that their original choice was wrong, still less that they were negligent”.
It was therefore held that an overly-cautious approach to parenting should not be encouraged and that children should be afforded a degree of freedom to foster growth and independence; holding the mother responsible in these circumstances would therefore impose an overly high standard of care on a parent. Therefore, it was felt that it would not be just and equitable to allow a finding of contributory negligence.
Sadly, the practical impact of including a parent in litigation means that the Claimant child cannot use the most appropriate adult as a litigation friend, which may delay settlement until liability is resolved.
The Impact of the Decision
Like those before it, this case does not seek to impose any rules as to the age at which a child can be found to be negligent. The case demonstrates the challenges and sensitivities in alleging contributory fault on the part of the parent or child where the primary cause of liability rests with a third party.
There remains the opportunity for Defendants to bring such a claim and Justice Yip specifically referenced the case of Williams v Williams (2013), in which the court upheld an allegation of contributory negligence by the mother for failing to use child restraints. However, each case will be determined on its own facts and strong evidence is needed to attach any negligence due to the undesirable implications of attempting to regulate decisions made in the course of daily parenting.
Overall, the position remains that “the natural sympathy for a parent of a child who had been catastrophically injured could not stand in the way of finding legal responsibility”; however, the courts must contemplate public policy in addition to the facts.