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Gough v Thorne

[1966] 1 WLR 1387; [1966] 3 All ER 398; (1966) 110 SJ 529

NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, CHILDREN, ROAD TRAFFIC ACCIDENT, INJURY, CONTRIBUTORY NEGLIGENCE OF CHILD

Facts

The plaintiff was 13 and a half when she and her two brothers, aged 10 and 17, were standing on the pavement, waiting to cross a busy main road at a place which formed a junction with another road. A lorry, which had turned out of the other road, stopped at the main road, to allow the children to cross. Its front wheel was 5 feet from the bollard in the middle of the road. The lorry driver held out his right arm to warn the oncoming traffic of the children crossing and beckoned with his left arm to the plaintiff and her brothers. When they had just passed the front of the lorry, the defendant drove his car, using the gap between the lorry and the bollard and struck the girl. In the action for damages, the plaintiff alleged that the accident was due to the negligence of the defendant, who denied liability on grounds that it was caused by or contributed to by the plaintiff. The trial judge found that the defendant was guilty of negligence for his failure to observe the lorry driver’s signal and for driving with high speed, but the plaintiff was 1/3 liable as she advanced past the lorry without looking to her right. The plaintiff appealed to the Court of Appeal.

Issue

Could a child be guilty of contributory negligence?

Held

The appeal was allowed.

(1) Generally, a child cannot be guilty of contributory negligence.

(2) The only exception to this rule are older children where they could be expected to take precautions for their own safety and blame for the accident could be attached to them.

(3) Given that she was beckoned by the lorry driver, the child of 13 and a half cannot be expected to lean forward to check whether any traffic was approaching.


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