Examining the importance of Gough -v- Thorne and the potential culpability of children in personal injury claims in light of the ongoing case of Bethany Probert -v- Churchill Insurance

Bethany Probert was 13 when she was hit by a Saab 9-3 driven by Paul Moore while she was walking home from riding stables along a country lane in December 2009. Bethany was walking along a grass verge at the time of the accident when Moore’s vehicle which was being driven at 50 mph on a dark, unlit bending country road. Bethany suffered a broken collarbone, lung damage, and devastating head injuries which have caused permanent brain damage. Now 16, Bethany has been left with limited walking ability, depression and a lack of concentration or spatial awareness. She requires specialist equipment, a support worker and an open plan, single-storey home and care for the rest of her life.

Bethany’s mother, as her Litigation Friend*, sued Moore for compensation to sustain her health care costs for the rest of Bethany’s life along with the cost of adapting Bethany’s home to meet her needs, payment for injuries and suffering, loss of amenity, any potential loss of earnings and care that she has had to receive as a result of the accident. Last August, at the High Court in London, a High Court judge found the Moore 100 per cent liable for the accident cleared Bethany of any contributory negligence. This meant that Moore’s insurers, Churchill, would be held fully liable for the claim.

One would think that would be the end to what is a sad and tragic story. Think again. Churchill have appealed the High Court’s ruling with their lawyers saying that Bethany should have been wearing reflective clothing or a high visibility jacket on the basis that she rides horses and therefore knows to wear one when out on a horse on the roads. Undeniably Bethany’s family has been devastated by the accident. Her mother has been forced give up work in order to care for her daughter and they have even had to sell their own home to pay for Bethany’s care. In light of this Churchill’s decision to appeal the High Court’s ruling has been met with condemnation and outrage from the public and the media so much so that on the 8th February 2013 Churchill Insurance released the following statement on this case via their website and Facebook account:

We are acutely aware of the public interest in the case of Bethany Probert.  These types of accidents are distressing and our thoughts are always with the victims and their friends and family.

It is in everybody’s interest that the claims process is resolved as fairly and effectively as possible.  The law is clear that the level of compensation must reflect the facts and circumstances of each case.

In the case of Bethany Probert, we have already accepted that our insured driver was largely responsible for this accident, and the appeal hearing will not alter this fact.

We also recognise how vital it is that payments are made promptly to ensure people get the care they need.  In Bethany’s case, we made an initial payment for rehabilitation and care, followed by further interim payments.  All such requests received to date have already been settled in agreement with Bethany’s representatives, with payments to date amounting to £200,000.

We are concerned to learn that Bethany and her family are suffering hardship, so we have been in contact with her representatives requesting further details in order to ensure Bethany receives the level of care she needs until the appeal process concludes.  

The facts of a case like Bethany’s are rarely straightforward. Determining the share of responsibility for the contributory factors in an accident is an important part of the legal process that exists to establish the fair amount of compensation.  The Court of Appeal will consider whether or not the initial trial judge was correct in finding that the driver was entirely to blame for what happened.  We always honour our obligations and pay the compensation that we should.  There is no question of that.

The insurance industry has a responsibility to make sure that insurers pay everything they should in a claim, as well as a responsibility to other policyholders that insurers pay no more than they should.  If the industry were to allow this commitment to lapse, the cost of claims would increase and policyholders would quickly pay more for the insurance they buy to protect themselves.

Taking into consideration the facts of this case it appears quite reprehensible that Churchill are taking the stance that they are. But as Churchill say in their statement above determining the share of responsibility for contributory negligence is an important part of the legal process and it is the responsibility of insurers to ensure that they do not pay out more than they should. So really what they are saying is that this is not personal, it is just the law. So how about we take a look at the law in question?

In England, Wales and Northern Ireland, the law states that the age of criminal responsibility is 10 years. That introduces a legal debate as to whether or not a child could ever be guilty of contributory negligence and if so at what age they would be liable? As any law student will discover in their research on the subject, ‘There is no age below which, as a matter of law, it can be said that a child is incapable of contributory negligence.‘** That is to say that there is no legislation giving an age for contributory negligence of a minor. But what about in the common law?

In Phipps v Rochester Corporation [1955] 1 All ER 129 a 5-year-old boy was walking across some open ground with his 7-year-old sister. They was not accompanied by an adult and he was injured when he fell into a trench. The defendant Corporation were not held liable as an occupier is entitled to assume that prudent parents would not allow their children to go unaccompanied to places where it is unsafe. Devlin J said: ‘The law recognises…a sharp difference between children and adults. But there might well, I think, be an equally well-marked distinction between “big children” and “little children”. I shall use those broad terms to divide broadly the difference between children who know what they are about and children who do not. The latter are sometimes referred to in the cases as “children of tender years”. Not having reached the age of reason or understanding, they present a special problem. When it comes to taking care of themselves, there is a greater difference between big and little children than there is between big children and adults…Adults and big children can be guilty of contributory negligence — a little child cannot.’

Lord Denning in his judgment in Gough v Thorne [1966] 3 All ER 398 said: ‘A very young child cannot be guilty of contributory negligence.’ This case involved A 13-year-old girl who was standing on the pavement waiting to cross the street. Between the pavement and the other side of the road was a refuge/traffic island. An approaching lorry driver stopped and beckoned the girl to cross. The girl crossed but after passing the lorry she was struck by a speeding car. The claimant was awarded damages but the amount was reduced by one-third as it was deemed that she had contributed to the negligence. The claimant appealed and it was held on appeal that a 13-year-old child could not be adjudged to have contributed to the negligence in the circumstances.

In this case Lord Justice Salmon said the test should be the behaviour of an ordinary child: ‘The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends upon whether any ordinary child of 13 1/2 could be expected to have done any more than this child did. I say “any ordinary child”. I do not mean a paragon o f prudence; nor do I mean a scatterbrained child; but the ordinary girl of 13 1/2’.

Lord Denning also went on to say that: ‘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 as reasonably to be expected to take precautions for his or her own safety: and then, he or she is only to be found guilty if blame should be attached to him or her…He or she is not to be found guilty unless he or she is blameworthy.’

In Jones v Lawrence [1969] 3 All ER 267, the claimant was a 7-year-old child that ran out from behind a parked car and collided with the defendant’s vehicle who was travelling too fast at the time to stop. The trial judge accepted that the claimant had been taught how to cross a road but he declined to make a finding of contributory negligence against the child. In summing up his judgment he said: ‘The propensity, however, of infants of seven years and three months to forget altogether what they have been taught was sensibly described by his schoolmistress…She was only describing what I regard as the normal experience of children of the age of seven years and three months…to show that the infant plaintiff was culpable or that his behaviour was anything other than that of a normal child who is, regretfully, momentarily forgetful of the perils of crossing a road’.

Toropdar v D [2009]EWHC 2997, which also dealt with the contributory negligence of a child injured in a road accident. Those with a keen eye will note that the driver appears as the claimant in this case as he brings an action seeking a declaration of non-liability for the injuries sustained to the child, D. That action, however, failed and Mr Justice Clarke was asked to consider whether the child, D, was at all guilty of contributory negligence and, if so, to apportion liability accordingly.

D was aged ten at the time and had been playing with three other boys of a similar age when he decided to run from his friends diagonally across in front of stationary bus at a bus stop and into the path of Mr Toropdar. At the speed Toropdar was travelling, which was not deemed as excessive, the impact was inevitable and D suffered serious brain injuries. Mr Justice Clarke examined the case law, and while accepting that they provided useful guidance each case turned on its own facts and circumstances.

In considering the relevance of D’s age, Mr Justice Clarke quoted Mr Justice Owen in McHale v Watson [1996] 115 CLR 199, where he said: “the standard by which (a child’s) conduct is to be measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience”. He also went on to quote Lord Denning in Gough v Thorne as above. Mr Justice Clarke’s view D’s youth reduced his blameworthiness in this case.

Mr Justice Clarke then examined Mr Toropdar’s driving and decided that while he was within the speed limit, the expert evidence was that had precautionary braking been carried out the accident would either not have occurred or D’s injuries would have been minor. Accordingly, Mr Toropdar was adjudged to be driving too fast in the particular circumstances of this case and he should have appreciated that pedestrians, especially children, were likely to be around. In reaching his conclusion Mr Justice Clarke held that the majority of the blame had to lay with Mr Toropdar, but damages were reduced by one-third for D’s failure to take care for his own safety.

Clearly Churchill Insurance were hoping that the High Court would have reached a similar judgment as Mr Justice Clarke did in Toropdar v D, hence their appeal of the decision. However, when you really look at the facts of the case it is obvious that Bethany was 13 years old at the time of the accident as was the claimant in Gough v Thorne, and therefore to many legal commentators below the age of mature responsibility in the eyes of the law. As for Churchill’s argument that Bethany should have been wearing a high visibility jacket well the fact is that Bethany has only ever ridden horses in a field and not out on the roads so can she really be held liable for not wearing such protective clothing when she does not wear them on a horse that is the basis of Churchill’s argument?

Bethany Probert’s case in the Court of Appeal is set to test the limits of what might be referred to as acceptable contributory negligence on the part of a child. Churchill believe that the facts of a case like Bethany’s are rarely straightforward. I would argue that it really is quite straightforward. In its original judgment the High Court upheld the principle laid down by Lord Justice Salmon in Gough v Thorne. We await to see whether or not the Court of Appeal will do the same.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

______________________________

* Sometimes situations arise where legal action needs to be taken, but the person to whom it relates is unable to represent themselves or to instruct others to represent them. In those situations the Court rules specify that the proceedings are to be conducted by a “litigation friend” on behalf of that party. The litigation friend then acts on behalf of the individual throughout the Court proceedings. This would include instructing Solicitors on their behalf, since no minor or patient can enter into a contract with a Solicitor. There are two situations where this mainly arises:

  • Those who are under the age of 18 and so are considered a minor.
  • Those who are considered to lack mental capacity within the meaning of the Mental Capacity Act 2005 (a “patient”).

**  Charlesworth and Percy on Negligence 12th Edition published by Sweet & Maxwell.

Case List

  • Phipps v Rochester Corporation [1955] 1 All ER 129
  • Gough v Thorne [1966] 3 All ER 398
  • Jones v Lawrence [1969] 3 All ER 267
  • McHale v Watson [1996] 115 CLR 199
  • Eagle v Chambers [2003] EWCA 1107
  • Toropdar v D [2009] EWHC 2997

References, Sources & Bibliography

The reasonable child defined (Wednesday 17 February 1993) The Law Gazette

Child Pedestrians and Contributory Negligence  (February 2010) Simpson & Marwick

Insurers say 13 year old girl is to blame for car accident that left her disabled (7 February 2013) HBJ&W Solicitors

Insurer given permission to appeal decision to fully compensate brain-injured girl, because she wasn’t wearing a high-vis jacket (7 February 2013) Bolt Burdon Kemp

Churchill Insurers Appeal Against £5m Payout to 16 Year Old Hit By Car Because She “Wasn’t Wearing a High-Vis Jacket!’ (11 February 2013) The Injury Lawyers

Churchill Press Release on Bethany Roberts (8 February 2013) Churchill Insurance

Charlesworth and Percy on Negligence 12th Edition published by Sweet & Maxwell

Markesinis & Deakin’s Tort Law 5th Edition by Oxford University Press

Mark Lunney & Ken Oliphant Tort Law Text & Materials 2nd Edition by Oxford University Press

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