On 19 October 2021 the Court of Appeal upheld the High Court’s decision that a child’s compensation should be reduced by the “unusually low” figure of 10%.
On 17 October 2015, a 13 year-old child (G) was crossing a West London residential road when he was struck by a car driven by the Defendant (M) who was approaching at 45 mph in a 20 mph zone. (Although not being chased, he seems to have been seeking to evade the Police at the time). His car was 42 meters away and clearly visible when G started to cross the road.
G sustained a serious brain injury as a consequence of being struck by M’s vehicle at 40mph. G was almost safely across the road, struck when he was only 30cm short of the far pavement.
The Court decided that a safe speed for M was 15mph. At that speed or at 20mph, the accident would not have occurred; M would have been able to stop and G would have made it safely across.
The Court of Appeal upheld the Judge’s finding that, although M’s driving was “reckless and furious”, G’s “culpable misjudgment” should not wholly be ignored. A reasonably careful 13 year-old should have waited for the car to pass. If he had kept an eye on the car as he crossed, he would have been able to quicken his pace and make it safely across.
Therefore, the Court decided that G should receive 90% compensation, with a 10% reduction for his “momentary error”.
This case should be contrasted with the decision of the High Court in Ellis v Kelly on 31 July 2018 (another case involving a severe child brain injury). In the words of the Judge, “this was a case of a momentary misjudgment” on the part of an 8 year-old “balanced against reckless conduct” of the Defendant “whose driving was outside the child’s expectations based on his understanding and experience; it would not be just and equitable to find contributory negligence.”
Clearly, a 13 year-old understands more about road safety than an 8 year-old, and this explains the different approach taken in these 2 tragic cases.
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