The case of Williams v The Estate of Dayne Joshua Williams (deceased), recently blogged by my colleague Vicky Walne appears a straightforward road traffic accident on the facts. An innocent child was seriously injured in a road traffic accident. The accident was not her mother’s fault. However, the real issue was that the child was not restrained in the correct child seat for her height. The defendant’s insurers therefore sought a contribution against the mother via her motor vehicle insurers for failing to ensure her child was in the correct seat. They argued that had she done so her daughter’s injuries would have been less severe. The defendant, on appeal was successful and the mother’s insurers were ordered to pay a 25% contribution to damages.
Many lay people may ask why? How can a parent be found partially responsible for injuries to their child when the accident itself was not their fault? It is a difficult concept to understand but the law is well established in this area.
There is a clear distinction between a child being found responsible for his or her own injuries and a parent being found partially responsible by act or omission for injuries to their child, even though they are not the person who caused the accident.
The former is “contributory negligence” in its true sense and is governed by The Law Reform (Contributory Negligence) Act 1945. Children can be found partly responsible for their injuries; the emphasis is on the extent of the blameworthiness of the child and the causative potency of their act or omission. Generally however, a child under the age of 10 is unlikely to be found contributory negligent. However, that is not a hard and fast rule. Each case will turn on its specific factual circumstances. The test is what degree of blameworthiness, if any, can attach to an objective reasonable child who is the same age as the claimant.
However contributory negligence of a child is distinct to the principle of parental contribution. Parental contribution is not a reduction by way of contributory negligence as such under the 1945, but an apportionment under the Civil Liability (Contribution) Act 1978.
Whilst the courts are reluctant to make a contribution finding against a parent, as the above case shows, it is not impossible for a defendant to prove the allegation. Williams is the most recent case, but there are other illustrative cases such as Ceri Jones (a child suing by her father and litigation friend Robert Gary Jones) v James Philip Jones (1) Patricia Wynn (2) and Pauline Jones (Part 20 Defendant), where again the child was not restrained in a car. Expert evidence obtained jointly by the parties advised that had the claimant been in an appropriate car seat, her injuries would have been avoided in their entirety. Whilst the defendant admitted primary liability for the accident, he brought the claimant’s mother in as Part 20 defendant alleging that she was also responsible for failing to secure her daughter properly. TheAppeal Court upheld the first instance decision that a 25% contribution on the part of the mother appropriate and remarked that blameworthiness and causative potency are key issues in deciding on whether a contribution is appropriate.
However such allegations should not be accepted without first considering the evidence carefully as in practice there are a limited number of cases on the issue because defendants can find it difficult to make out the allegation.