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Morales v Eccleston

[1991] RTR 151

NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, ROAD TRAFFIC ACCIDENT, CHILDREN, LACK OF REASONABLE CARE FOR ONE’S OWN SAFETY, BLAME

Facts

The defendant, Eccleston, was driving at 20 mph along in a traffic stream along a road that was 30 feet wide. The plaintiff, Morales, who as an 11-year-old boy, followed a football out into the road, without looking at either direction. Morales crossed over the centre of the road and into Eccleston’s carriageway, walking sideways. As a result, Eccleston hit him. The defendant admitted that he had not seen the plaintiff until the collision occurred. At the time of the accident, the weather was fine, the road was dry and the visibility was good. The trial judge held that because Ecclestone did not have a proper lookout, he was 80 per cent to blame for the accident. The defendant appealed against this decision to the Court of Appeal.

Issue

Does the defendant’s failure to see the plaintiff crossing a road amount to negligence?

Held

The appeal was allowed.

(1) Whilst there was some material showing that if the driver had had a proper lookout, he would have seen the plaintiff, the trial judge’s conclusion on the appointment of blame was incorrect.

(2) The plaintiff’s negligence is plain as when a stream of traffic was approaching, he went into a road trying to recover a ball without looking, which demonstrates his reckless and disregard of his own safety.

(3) Therefore, the plaintiff’s contributory negligence is 75 per cent of the blame for the accident.


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