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Contributory Negligence – Should case leaders be thinking how to establish full liability first and apportionment second?

In the recent findings of the Alabady v Akram [2021] case, where a 9 year old child was found not to have been contributory negligent whilst crossing a carriageway at night, it begs the question whether practitioners think twice when considering whether to take a child case even where a higher standard of care is expected of the driver.

In this case, the young pedestrian crossed a three-lane carriageway whilst the red man was illuminated. Other members of her group stopped when they saw the car coming at 43 mph in a 30 mph zone but the claimant continued and she was hit about half way across the carriageway. The Defendant assumed that the group was going to stop and the judge found that the young pedestrian was not contributory negligent.

In a recent article it makes an interesting point that, once upon a time, Judges would not make a finding of contributory negligence against children below the age of 10 years old (criminal accountability age) however this is no longer the case. The test of reasonableness is not of what an adult may have done but it is what a child is expected to do of the same age and intelligence in the circumstances as was found in this case. It would also seem that where a driver is driving within the vicinity of children, a higher standard of care is required of the driver.

Interestingly the finding of contributory negligence on a child is not one of fault but whether damages could have been avoided if the child acted differently i.e causative fault. If the degree of blame is so minor, then it could be treated as being de minimis, for example less than 10% and no deduction is then made from the damages.

As the article suggests when you see a case involving a child suddenly running, stepping or walking out into the road, it might be natural to think what the apportionment on liability might be before as with other cases assessing full liability against the other party, but as is highlighted in this case you should be thinking how to establish full liability against the driver first and apportionment second.

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