Saboor Gul (A child proceeding by his Father and Litigation Friend Ghafoor Gul) v Mr James McDonagh
| Jurisdiction | England & Wales |
| Judge | Gargan |
| Judgment Date | 08 January 2021 |
| Neutral Citation | [2021] EWHC 97 (QB) |
| Date | 08 January 2021 |
| Docket Number | Case No: QB 2019 001 348 |
| Court | Queen's Bench Division |
[2021] EWHC 97 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Gargan
(Sitting as a Judge of the High Court)
Case No: QB 2019 001 348
Mr Paul Rose (instructed by Sintons, Newcastle)) for the Claimant
Mr David Rivers (instructed by Sintons, Newcastle) as Junior Counsel for the Claimant
Mr Timothy Horlock QC (instructed by Weightmans, Liverpool) for the Second Defendant
The First Defendant playing no part in the proceedings
Hearing dates: 30th November and 1st December 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official recording shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The judgment was handed down at a hearing on 8 th January 2021 held by CVP when the judge was sitting at Teeside Combined Court .
(1) Introduction
The claimant was born on 16 February 2002 and is now 18. On 17 October 2015, aged 13 years and 8 months, the claimant sustained catastrophic injuries in a road accident when he was struck by a Ford Focus motorcar (the Focus) being driven recklessly by the first defendant.
The second defendant has been joined to the proceedings because it has a contingent liability to satisfy any judgment the claimant obtains against the first defendant who was uninsured. The first defendant has played no part in these proceedings.
The second defendant admits primary liability and judgment for damages to be assessed was entered against the first defendant on 11 September 2019.
The claim comes before the court for the trial on the question of contributory negligence as a preliminary issue.
The accident happened at about 13:35 on a Saturday afternoon and there were a number of people in the area, including a number of police officers. The witnesses are able to give evidence about the events leading up to the collision and about what happened in the immediate aftermath of the impact but no witness actually saw the claimant crossing the road and being struck by the Focus. Although the second defendant does not agree the evidence of the witnesses from whom the claimant has served statements it does not challenge that evidence and has not required the witnesses to attend for the purposes of cross-examination.
The claimant and the second defendant each appointed Accident Reconstruction Experts (ARE), Mr Blackwood for the claimant and Mr Sorton for the second defendant. The experts have prepared a Joint Statement in which they conclude that there are no significant areas of disagreement between them on the material issues and it has not been necessary to call them to give oral evidence.
Therefore, no live evidence has been called and the trial proceeded by way of submissions. I take this opportunity to thank counsel for the way in which they conducted the hearing.
(2) The law: basic principles
The starting point is section 1(1) of the Law Reform (Contributory Negligence) Act 1945 which provides:
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.”
Whether and, if so, to what extent a finding of contributory negligence should be made involves a balance of blameworthiness and causative potency: see Davies v Swan Motor Co [1949] 2 KB 291:
“Whilst causation is the decisive factor in determining whether there should be a reduced amount payable to the plaintiff, nevertheless, the amount of the reduction does not depend solely on the degree of causation. The amount of the reduction is such an amount as may be found by the court to be “just and equitable”, having regard to the claimant's “share in the responsibility” for the damage. This involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness.”
The test for negligence is objective. Where the court is asked to assess whether to make a finding of contributory negligence against a child the court does not apply the same standards as it would apply to an adult. The most helpful guidance as to the approach the court should take is set out in Gough v Thorne [1966] 1 WLR 1387:
10.1 Lord Denning at p. 1390:
“A very young child cannot be guilty of contributory negligence. An older child maybe. 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 to be expected to take precautions for his or her 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 experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.”
10.2 Lord Salmon LJ at p.1391:
“The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether an ordinary child of 13 could be expected to have done more than this child did. I did say “ordinary child”. I did not mean a paragon of prudence; nor do I mean a scatter-brained child; but the ordinary child of 13.”
There is no hard and fast rule as to the age at which a child may be held to be guilty of contributory negligence-although counsel could find no reported cases in which a finding has been made against a child under the age of 8. When judging the actions of a child, the standard of care is to be measured by that reasonably to be expected of a child of the same age, intelligence and experience.
The claimant in this case was 13 and would have just started Year 9 at secondary school. He can properly be expected to have a degree of road sense-not as much road sense as an adult but considerably more than an 8 year old.
Having established the basic principles both counsel acknowledged that the Court of Appeal has repeatedly said that the fact sensitive nature of road traffic claims is such that comparison with other cases is rarely helpful. Nevertheless they have both cited a number of additional authorities to illustrate the way in which different facts have led courts to different outcomes. I will return to those cases once I have made my findings on the material facts.
Mr Horlock QC also draws the court's attention to Rule 7 of the Highway Code which provides as follows:
“Crossing the Road
7.
The Green Cross Code. The advice given below on crossing the road is for all pedestrians. Children should be taught the Code and should not be allowed out alone until they can understand and use it properly. The age when they can do this is different for each child. Many children cannot judge how fast vehicles are going or how far away they are. Children learn by example, so parents and carers should always use the Code in full when out with their children. They are responsible for deciding at what age children can use it safely by themselves…
…
DIf traffic is coming let it pass. Look all around again and listen. Do not cross until there is a safe gap in the traffic and you are certain that there is plenty of time. Remember even if traffic is a long way off it may be approaching very quickly.
E.
When it is safe, go straight across the road, do not run. Keep looking and listening for traffic while you cross, in case there is any traffic you did not see and in case other traffic appears suddenly…”
(3) The first defendant's driving: An overview
The first defendant was 39 at the time of the accident. He had an extensive criminal record. On 8 th September 2015 the first defendant was sentenced to 12 weeks imprisonment suspended for 12 months for making false representations in relation to Apple products. Immediately before the accident the first defendant was attempting to sell Apple products to passers-by on Uxbridge Road in Shepherd's Bush. As far as I am aware the first defendant has not been convicted of any offence in relation to this conduct but on balance of probability I find he was engaged in a further criminal enterprise.
The first defendant's conduct was reported to the police. The first defendant realised that the police were approaching him and made his way to the Focus which was parked on Caxton Road. He was confronted by police officer who opened the car door. In order to make good his escape the first defendant drove off with the door open and the front wheels spinning. The Focus then turned left from Caxton Road onto Bulwer Street where the accident occurred at its junction with Aldine Street. Despite colliding with the claimant and sustaining substantial damage to the windscreen on the driver's side the first defendant continued to drive away from the police, no doubt worried that if arrested the suspended sentence would be activated.
There is limited footage of the first defendant's driving before the accident and the accident locus is not covered. However, it is agreed that the first defendant was driving down Bulwer Street at over 40mph, even though it was subject to a 20mph limit.
As a result of the accident the first defendant was charged with causing serious injury by dangerous driving. The standard of his driving after the accident gave rise to a further charge of dangerous driving. The first defendant pleaded guilty to these offences and was sentenced to a total of 45 months' imprisonment, of which 30 months was imposed for the offence of causing serious injury.
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Saboor Gul (by his father and litigation friend Ghafoor Gul) v James McDonagh
...ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION His Honour Judge Gargan (sitting as a Judge of the High Court) [2021] EWHC 97 (QB) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Underhill (Vice-President of the Court of Appeal (Civil Division)) Lord Justice St......