Gough v Thorne
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Danckwerts,Lord Justice Salmon |
| Judgment Date | 01 July 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0701-1 |
| Court | Court of Appeal |
| Date | 01 July 1966 |
[1966] EWCA Civ J0701-1
The Master of the Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice MacKenna - London)
Mr. Peter Pain, Q.C. and Mr. Ronald Shulman (instructed by Messrs. Vaudreys, London, S.E.18) appeared on behalf of the Appellant-Plaintiff (Respondent on appeal on quantum).
Mr. Michael Ogden (instructed by Messrs. Gardiner & Co.) appeared on behalf of the Respondent-Defendant (Appellant on appeal on quantum).
(on appeal as to liability)
(without calling upon Counsel for the Appellant to reply)
On the 13th June, 1962, a group of children were crossing the New Kings Road. They were Malcolm Gough, who was 17; his brother John, of 10; and his sister Elizabeth, who was 13½. They were coming from the Wandsworth Bridge Road, crossing the New Kings Road, and going to a swimming pool on the other side. They waited on the pavement for some little time to see if it was safe to cross. Then a lorry came up, coming up the Wandsworth Bridge Road and turning into the New Kings Road. The lorry driver had got pretty well halfway across the road, towards the bollards, and he stopped at about 5 feet from the bollards. He put his right hand out to warn the traffic which was coming up the road. He saw the children waiting; he beckoned to them to cross; and they did. They had got across just beyond the lorry when a "bubble" car, driven by the defendant, came through the gap between the front of the lorry and the bollard, about 5 feet, just missed the eldest boy, and struck the young boy of 11, but ran into and seriously injured Elizabeth, of 131/2, Now, on Elizabeth&s behalf, there is a claim against the driver of the "bubble" car for negligence.
The judge has found that the driver was negligent. He said that the "bubble" car was going too fast in the circumstances, and that he did not keep a proper look-out because he ought to have seen the lorry driver&s signal and he did not see it. He has found, therefore, that the driver of the "bubble" car was to blame and negligent.
But then there came the question whether the little girl, Elizabeth, was herself guilty of contributory negligence. As to that, the judge found that she was one-third to blame for this accident. I will read what the judge said about it. "Was there contributory negligence?", he asked. He answered: "I think that there was. I think that the plaintiff was carelessin advancing past the lorry into the open road without pausing to see whether there was any traffic coming from her right. I do not think that her responsibility was very great. After all, the lorry driver had beckoned her on. She might have thought it unlikely that any traffic would try to come through the gap. She might have thought that if there were any traffic coming from that direction, it would wait until the lorry started to move or gave the all clear. She was, after all, only 13 years old. I assess her degree of responsibility at one-third".
I am afraid I, cannot agree with the judge. A very young child cannot be guilty of contributory negligence. 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 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. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.
In this particular case I have no doubt that there was no blameworthiness to be attributed to Elizabeth at all. Here she was with her elder brother crossing a road. They had been beckoned on by the lorry driver. What more could you expect the child to do than to cross in pursuance of the beckoning? It is said by the judge that she ought to have leant forward and looked to see whether anything was coming. That indeed might be reasonably expected of a grown-up person with a fully developed road sense, but not of a child of 13½.
I am clearly of opinion that the judge was wrong in attributing any contributory negligence to Elizabeth, aged 13½; and I would allow the appeal accordingly.
I agree.
This seems to me a very bad case of negligence on the part of the driver of the "bubble" car. It is the kind of accident which occurs so easily when one driver pulls up courteously tolet some pedestrian cross the road and another, selfish, driver comes thrusting past and causes an accident by so doing. The speed at which the defendant was proceeding was so great that he did not see the lorry driver&s hand outstretched, and the unfortunate Elizabeth appeared merely as a "white blur" when he hit her. The facts seem to me to speak for themselves. The accident was wholly caused, in my opinion, by the carelessness of the defendant and the speed at which he was travelling.
As regards the point about contributory negligence on the part of Elizabeth, I agree with every word which the Master of the Rolls has said and I need not add anything, I think, in that respect.
I also agree that the appeal should be allowed.
I entirely agree.
This girl of 13½ was waiting perfectly properly on the pavement with her two brothers to cross the New Kings Road. The lorry, which had pulled out of Wandsworth Bridge Road, stopped in the New Kings Road to allow the children to cross. Its offside front wheel was about 5 feet from the bollard in the middle of the road. The driver held up his right arm to warn traffic coming from the east along New Kings Road to stop, and with his left arm he beckoned the group over. They crossed. The defendant&s motor car, at what the judge has held to be an excessive speed, ignored the signal to stop, went straight through the gap between the lorry and the bollard, and knocked the plaintiff over and injured her quite seriously.
I think that this question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13½ could be expected to have done any more than this child did. I say, "any ordinary child" I do not mean a paragon of prudence; nor do I mean a scatterbrained child; but the ordinary girl of 13½. I think that if any ordinary child of 13½, seeing a lorry stop to let her over and a lorry driver, a grown-up person in whom she no doubt has some confidence, beckoning her to cross the road, goes straighton, no one could be surprised., I agree that if she had been a good deal older and hardened by experience and perhaps consequently with less confidence in adults, she might have said to herself: "I wonder if that man has given the proper signal to traffic...
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