THE CHILD IN THE ROAD Part 2

 

 By John Collins

1. Six months ago I discussed at some length the issues arising from the decision of the Supreme Court in Jackson v Murray [2015] PIQR P249.
2. More recently in Sabir v Osei-Kwabena [2016] PIQR Q56, the problem cropped up again, this time in the Court of Appeal. Maria Sabir is short of stature, less than 5ft tall. She set out to cross Green Lane, Ilford, a busy road lined with shops. When she stepped into the road, she was some 19m beyond a traffic light controlled junction where there were pedestrian crossing facilities. When she stepped into the road, the Defendant’s car, travelling at 30mph, was some 35m away. She was not walking briskly and she was still in the road in front of him when the Defendant realised she was there. She was by then only 4m away. At 30mph it was impossible for him to avoid a collision. The Claimant saw the car approaching, but misjudged its position and did not appreciate that she did not have time to cross the road safely. The judge found that she was 25% contributorily negligent. The Defendant appealed, claiming that her responsibility should have been at least 50%. The Court of Appeal upheld the judge’s decision and indeed Tomlinson LJ, who gave the only reasoned judgment, made it clear that he would have come to the same conclusion on the facts.
3. The Court of Appeal once again confirmed that there are two elements to apportioning liability in this sort of case, (i) The respective causative potency of what they have done and (ii) Their respective blameworthiness. They recognised that the Claimant’s misjudgement contributed to the damage, as did her failure to pay attention to the car’s approach, since if she had watched it, she would have known either to stop or to speed up. But there was no question but that a car will do much more damage to a person than a person can do to a car.
4. The Court of Appeal recognised that each case depends on its own facts. However, it seems to me that one can derive certain reasonable inferences from the accumulated decisions, many of which are brought to light only by the researches of counsel.
5. First, in a situation where a car and a pedestrian crossing the road in front of the car are each at fault in failing to keep a proper look out and failing to consider sufficiently carefully the risk of collision with the other, a fair apportionment of liability is 25% against a pedestrian and 75% against the car driver.
6. Secondly, that is not to be treated as a rule, but simply a starting point. If the pedestrian is running into the road, so that the car driver has much less opportunity to observe and avoid the pedestrian that could create a situation where, even if the car driver is held to be at fault at all, the proportions of liability may be very different. One has to look at both the causation and the blameworthiness.
7. Where it is a child in the road, one has in addition to make allowances for the child’s inexperience. That can have the consequence that rather than being held 25% contributorily negligent, the child is held not to be negligent at all because she was acting with what was substantially the care or lack of it of a child of her age. By the time a child reaches 13 or more years the courts will tend to make a lesser allowance for inexperience, but that issue can still be raised. For a child under 8 years, it must be very rarely that a court will hold the child to be contributorily negligent.

JOHN M. COLLINS

Please click here to see the first ‘Child in the Road’ post