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Gough (an infant) v Thorns [1966] 1 WLR 1387 Court of Appeal

Two brothers and a sister (aged 17, 10 and 13 respectively) were waiting to cross a road in order to go swimming. A lorry slowed down and beckoned them to cross which they did. At that time, a bubble car driven by the Defendant, came through a narrow gap and narrowly missed the oldest brother, struck the younger brother and crashed into the sister causing her serious injury. At trial the judge held that the young girl was 1/3 to blame for the incident and reduced her damages accordingly under the Law Reform (Contributory Negligence) Act 1945. The appellant appealed against the decision in relation to contributory negligence.

Held:

The appeal was allowed. Whilst young children can not be held to be contributory negligent, an older child may but only if they can in some way be held to be blameworthy. The girl had acted in accordance with what could reasonably be expected of a 13 year old girl.

Lord Denning:

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.
 
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