Ngelea v Bulu [1998] SBHC 120; HCSI-CC 41 of 1997 (21 September 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 41 of 1997

BEVERLY NGELEA

-v-

EMILIO BULU AND ANOTHER

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No. 41 of 1997

Hearing: 6th August, 1998
Judgment: 21st September, 1998

D. Hou for the Plaintiff
S. Watt for the Defendant

PALMER J.: The Plaintiff is an infant suing by her next friend and father, Ellision Ngelea. At the time of the accident she was seven (7) years old. She claims damages for negligence committed by the Second Defendant when she was ran over by a vehicle driven by him. The particulars of negligence as pleaded in the Statement of Claim read as follows:

“The Defendant’s said servant:-

a) Failed to notice and/ or heed the presence and proximity of the Plaintiff knowing that the road passes through Titiana Village where the children normally walk.

b) Failing to keep any or any proper lookout.

c) Failing to apply the brakes of the said motor vehicle properly or at all in order to avoid the collision.

d) Failing to so steer or control the said motor vehicle as to avoid the collision.

e) Driving on the wrong side of the road in the circumstances.

f) Failing to keep his motor vehicle to the left hand side of the road.

g) Having stopped on impact, failed to get out of the said motor vehicle to see where the Plaintiff was lying and thereby avoid further running over the Plaintiff when he again moved the vehicle forward.”

The Evidence - Children playing at the scene.

It is not in dispute that a traffic accident occurred on or about 18th April 1996, at Titiana Village, Gizo. This involved a light goods vehicle driven by the Second Defendant. A number of persons witnessed the accident.

From the Plaintiff’s side, PW2, PW3, PW4 and PW5 witnessed the incident. PW2 was the victim herself. All these witnesses testified of the presence of children at the scene of the accident. PW2 states she was playing in front of their house with other children at the said time. PW3 and PW4 also confirmed this. PW5, an objective witness, who happened to be approaching the scene at the said time, also saw children playing opposite the Plaintiff’s house though he was some distance away opposite Karuka’s residence when the second Defendant’s vehicle passed him and then collided with the victim opposite her house. If he was able to observe the presence of children at the scene then it is indeed surprising that the second Defendant should deny or could not see the presence of children at the scene.

DW5 (also a child of about 9 years at the time of the accident) confirmed seeing children opposite the Plaintiff’s house. She was about the same distance from the scene as PW5, but on the right side of the road. This would obviously give her a clearer view of the accident than PW5. Note PW5 did not actually see the impact whilst DW5 was able to see this clearly.

Only the Second Defendant denied seeing any children at or around the Plaintiff’s house at the said time. When all the evidence is weighed together, I reject the evidence of the second Defendant that there were no children around at the scene of the accident. Rather, I accept the overwhelming evidence from other witnesses that there were children around and can be seen playing at or near the road at the scene of the accident.

Evidence of collision:

PW2 states she ran into the middle of the road after being chased by her friends. She stood in the middle of the road for sometime before observing that a vehicle was heading in her direction. Thinking that it would continue on its left side she did not make any attempts to move until she realized that it was heading towards her on the right. She alleges she was hit as she tried to get away from the vehicle.

PW3’s evidence however was slightly different. In chief she states the victim was standing at the side of the road when the vehicle came and hit her. In cross-examination, she said the victim was running at the side of the road (right side) when the vehicle hit her. The driver she observed was looking towards the direction of the sea away from the child when the accident happened.

Defence witnesses called to give evidence of the actual impact on the other hand gave a different version. This came from DW2 (the driver of the vehicle) and a child witness DW5. DW2’s evidence basically was that it was the child who ran into his vehicle and collided at the right side door of his truck. He denied seeing the child in front or when she collided with his vehicle. He only became aware that something was amiss when he heard something hit his truck. He says he did not stop immediately as he thought someone had thrown a rock at his vehicle.

His evidence as to how the collision actually took place is supported to a certain extent by the evidence of DW5. This witness was walking along the road near the scene when the accident happened. She saw the victim running onto the road being chased by some children and colliding with the vehicle on its right door.

When all the evidence concerning the collision is weighed and assessed, I find the version of DW2 and DW5 to be more correct and accurate. The victim’s evidence and that of PW3 do not match. PW2 says she was already in the middle of the road when she was hit, whilst PW3 states she was hit at the side of the road. I find the evidence of DW2 and DW5 to be more consistent with the description of events immediately after the impact of the collision. PW5 describes seeing the vehicle’s tyres going over the thighs of the victim. This is consistent with what DW5 says regarding how the victim fell backwards after colliding with the vehicle at the right side door of the truck. I reject the Plaintiff’s version of the impact of the collision and accept instead the version of Defence.

The Law:

The law of negligence necessarily implies a breach of a duty to take care imposed by common law or statute law. In Thomas v Quartermaine [1887] UKLawRpKQB 47; (1887) 18 Q.B.D. 685 Bowen L.J states:

“The ideas of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound by law to exercise towards somebody.”

In Grill v General Iron Screw Collier Co. [1866] UKLawRpCP 68; (1866) L.R. 1 C.P. 600, 612, Willes J. said:

“It is really the absence of such care as it was the duty of the defendant to use.”

In the celebrated case of Donoghue v Stevenson (1932) A.C. 562, 618 and 619, Lord Macmillan said:

“The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.

In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence ... The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty.”

The learned Author in Halsbury’s Laws of England Fourth Edition, sets out succinctly in paragraph 1, the general principles of the law of negligence as follows:

Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger.”

APPLICATION:

(A) The duty to notice and/or heed the presence and proximity of the Plaintiff knowing that the road passes through Titiana Village where the children normally walk.

In my respectful view this duty is closely linked to the duty referred to in Paragraph (B) of the Statement of Claim; the duty to keep any or any proper lookout. If you keep a proper lookout then you won’t fail to notice or heed the presence and proximity of persons on the road.

Was there a failure to heed the presence of and proximity of children playing at the side of the road near the Plaintiff’s house? The second Defendant (DW2) states in evidence he did not see any children playing at the side of the road. All other witnesses however noted the presence of children. In particular and of crucial relevance, the evidence of PW5 and DW5. In my findings on this I ruled that there were children playing at the side of the Plaintiff’s house.

In my respectful view the fact that the second Defendant failed to notice the presence of children at the scene of the accident is supportive of the view that he did not keep a proper lookout. It showed that the second Defendants attention was not on the road and on his surroundings. His attention was not focused on his driving otherwise he would have heeded the presence of children and taken extra care as he approached the scene. His lack of concentration would appear to be consistent with the observation of PW3 that the driver (second Defendant) was looking in the direction of the sea when the accident happened.

In the circumstances of this case, if he was keeping a proper lookout, there was no way he would have failed not to notice the presence of children playing at the side of the Plaintiff’s house. There was some suggestion that there were bushes around the Plaintiff’s house and that it was difficult to have a clear view of the children playing at the side of the house. But even if that were so, there is very clear evidence from other witnesses that they were able to notice the presence of children in spite of this. Having visited the site and observed the surroundings, even if there was some bushes around, it seems to me to be too far fetched to suggest that the bushes completely blocked out the view from the road. If PW3 sitting in the house was able to look out onto the road and observe the vehicle on the road then how much easier it would be for the driver sitting on a high pick up truck be in a better position to observe children playing on the side of the road.

When this is contrasted with what was said by the second Defendant, that he did not see any children around the Plaintiffs house, it can only go to show that he failed to heed and/or notice the presence and proximity of children playing at the side of the road at the said time and that is evidence of negligence on his part.

(B) The duty to keep any or any proper lookout:

I have already touched on this duty in dealing with the duty to notice or heed the presence of children on or near the road. I am satisfied on the evidence there was a failure on the part of the second Defendant to keep a proper lookout. That duty is of particular relevance here where evidence had shown that there were children playing at the side of the road. That duty requires that he must be ready and prepared for children knowing that they may be expected to run suddenly on to the road, (as happened in this case). Knowing that there were children around places the duty squarely on his shoulders to take care. If he had been keeping a proper lookout, he would have been able to take evasive action or such action as would minimise any harm; or injuries that might arise from the accident.

A number of case authorities have been referred to in support by learned Counsel for the Plaintiff. One of these was the case of Jones v Lawrence [1969] 3 All E.R. 267, which involved an infant plaintiff, a boy of seven years and three months who ran out from behind a parked van across a road, without looking. There was a collision between the infant plaintiff and the defendant on his motor bicycle. The defendant however was travelling at a speed of about of 50 m.p.h in a built-up area where there was a speed limit of 30 m.p.h. Held that the defendant was negligent. Also held and of relevance, was the finding by the court that the conduct of the infant plaintiff was only that to be expected of a seven year old child and could not amount to contributory negligence. At page 270, letter E to G, Cumming-Bruce J. described in detail the actions of the infant plaintiff:

“Of course, the infant plaintiff, then aged seven years and three months, should not have run out across the road in the path of a motor bicycle driven down the road at about 50 m.p.h. The problem is whether in the case of a boy of seven years and three months the defendant has proved that the boy showed a culpable want of care for his own safety. Of course, it is true that he had been taught road discipline and now aged 11 he described in the witness box with perfect skill what he had been taught and did it very nicely. I do not doubt that he had received that teaching before the date of the accident and that if he had given the matter a thought he would have realised it was his duty, as a matter of taking reasonable care for his own safety, to advance with the utmost caution and look round the corner of the van in order to see whether anything was coming before he walked or ran across the road. The propensity, however, of infants of seven years and three months to forget altogether what they have been taught was sensibly described by his schoolmistress. She made an observation that if a child of that age wants to get anywhere, he will forget all he has been taught. She said such children do not remember if something else is uppermost in their minds. She was only describing what I regard as the normal experience of children of the age of seven years and three months.”

In the facts of this case, it was accepted that the child had been carefully taught by the father (a policeman), how to conduct herself on or near the road. But the fact that she ran out onto the road when chased by other children only goes to show the normal reactions of such a child in the heat of play, forgetting all the safety rules she had been taught by her father. These are the normal experience and actions to be expected of a seven year old child described by his Lordship Cumming-Bruce J. above.

In this case, I find on the evidence that the second defendant failed to keep a proper lookout and to be ready and prepared for children knowing that they may be expected to run suddenly on to the road. This is evidence of negligence on the part of the second Defendant.

(C) Failing to apply the brakes of the said motor vehicle properly or at all in order to avoid the collision:

A number of things stand out in evidence. First it is not denied that the brakes were defective. This was due according to evidence, to mud and water getting into the lining of the brake shoes. The evidence as adduced showed that there were a lot of potholes filled with water and mud which would have affected the braking system of the vehicle. The condition of the road from Gizo to Titiana was described as poor. The second Defendant stated that it had been raining in the morning and so there was water and mud on the roads.

In the circumstances, it should have been expected that the brakes may become defective. In his evidence, the second defendant states he only became aware the brakes were not working properly when he approached the Plaintiffs house. That would have caused him to drive extra carefully and slowly knowing that it would take him longer to stop if any child should suddenly dart out from the sides of the road. The evidence as adduced concerning his speed was that he was not driving fast. This would imply that he was not travelling at a speed which was unreasonable in the circumstances. Unfortunately, this would have been fine where his brakes worked normally. Not in this instance. Evidence showed that the vehicle did stop but then continued a bit more before eventually stopping. This would have been consistent with the evidence of defective brakes. In cross-examination it was conceded by this witness that he had to pump the brakes a couple of times in order to stop. This is consistent with defective brakes and evidence of negligence on the part of the second Defendant. In all the circumstances prevailing at the said time, the second defendant ought to have known that the said brakes may not be functioning properly due to the poor condition of the road and the amount of water and mud on the road and to have taken all steps necessary to avoid danger. But even if had attempted to stop immediately, it is clear he would not have been able to do so. He would have to pump his brakes several times before the brakes would hold.

Secondly, in his evidence he stated that he did not stop immediately when he heard something hit his truck. With respect, I find that amounts to negligence on his part. Had he heeded the presence of children at the scene and kept a proper lookout, as soon as he had heard something hit his truck, he should have immediately applied his brakes and stopped the vehicle from moving any further. He did not do that. He also did not go out and check or even look out to his right and back to check what had happened or caused the loud noise. Had he done so, he would not have failed to notice a child lying immediately behind him to his right. It is clear on the evidence that further harm and injury could easily have been avoided had the second defendant done the obvious thing of stopping his vehicle straight away. It is clear further harm and injury was caused by having his vehicle go over the victim whilst on the ground. I find this conduct clearly negligent.

(D) Failing to so steer or control the said motor vehicle as to avoid the collision:

I also find under this head that the second defendant failed to control his vehicle in such a way as to avoid running over the child after the child had collided with the vehicle. Had he stopped immediately, the injuries suffered it seems would or might have been much less. The injuries were quite severe due to the fact that the vehicle climbed over the thighs of the child where she had fallen after colliding with the vehicle.

(E) Driving on the wrong side of the road in the circumstances:

The evidence as adduced and based on the site visit does not support this claim. The road is wide enough only to accommodate one vehicle travelling on the road. Two vehicles cannot by-pass each other without having to give way. To suggest that the second defendant was driving on the wrong side of the road implies that the road was wide enough to accommodate two vehicles travelling on opposite directions. This allegation must be dismissed.

(F) Failing to keep his motor vehicle to the left hand side of the road:

Again this is directly related to paragraph (E) above. The road being a single lane road, there is no real distinction between a left or right lane.

(G) Having stopped on impact, failed to get out of the said motor vehicle to see where the Plaintiff was lying and thereby avoid further running over the Plaintiff when he again moved the vehicle forward:

I have already made references to this. I find on the evidence before me that he was negligent in not stopping immediately to check what had hit his truck. But even if he had attempted to stop immediately he would not have been able to do so as a result of defective brakes. This is clear evidence of negligence.

Evidence of previous conviction:

The second Defendant had been charged under the Traffic Act for careless driving. He pleaded guilty and was convicted. Learned Counsel for the Plaintiff submits that this conviction should be admitted as evidence of negligence against the second Defendant. He relied on the judgment of Muria C.J. in the case of Abraham Tofe v Dante Teioli, judgment delivered on 30 September, 1994. The Defendant had pleaded guilty in the Magistrates Court for the offences of Careless Driving and Taking and Driving away a motor vehicle without authority. The learned Chief Justice considered the rule in Hollington v Hewthorn [1943] KB 587 in contrast to later authorities which criticized that decision. His Lordship also considered the law as it applied to Solomon Islands and came to the conclusion that the rule in Hollington v Hewthorn was inconsistent with statute law as it applied under the Evidence Act 1851. Section 13 of the Evidence Act 1851 read:

“....Whenever in any proceeding whatever it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof; but it shall be sufficient that it be certified or purport to be certified under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof”

His Lordship held that the position in In the Estate of Crippen [1911] UKLawRpPro 4; [1911] P 108, reflected more accurately the law as stated above in Solomon Islands and adopted it. This was that a certificate of conviction is admissible not merely as proof of the conviction, but also of the commission of the crime against the person convicted in civil proceedings. In Tofe v Teioli his Lordship ruled that the conviction was admitted as evidence of negligence against the Defendant.

In his submissions on this, Mr. Watt for the Defendants submits that whilst the certificate is admissible as evidence of proof of commission of the offence, he suggests further that it is not conclusive. The Court should consider the weight to be attached to such record. He relied on the case of Taylor v Taylor 1970 1 W.L.R 1148. This was a case which involved petition of the wife for divorce on the ground of her husband’s adultery alleging incest with their 14 year old daughter for which the husband had been tried and convicted. The husband denied the adultery and cross prayed for a divorce on the ground of the wife’s adultery. When the matter came before the Commissioner’ he relied solely on the depositions of witnesses at the criminal trial without reference to a transcript of the criminal proceedings. In so doing he found that the husband had been wrongly convicted of incest and dismissed the wife’s petition.

The wife appealed to the Court of Appeal. Davies L.J delivering the judgment of the Court described the approach taken by the Commissioner as “undesirable and unsatisfactory”. He found that the Commissioner should have considered the transcript of evidence before making any conclusions. The Court of Appeal took the view that the transcripts were admissible and after considering them, came to the conclusion that the Commissioner’s acquittal of the husband on the charge of incest was unwarranted and dismissed it.

The important point to note from that decision is the view held by the Court of Appeal that “... quite obviously the most serious consideration and the heaviest weight should be given to the fact of the conviction in the criminal court.” This view reiterated what was said in Stupple v Royal Insurance Co. Ltd [1971] 1 Q.B. 50 by Lord Denning MR. At page 72 letter A, his Lordship said:

“I think that the conviction does not merely shift the burden of proof. It is a weighty piece of evidence of itself.”

On the burden of proof, his Lordship states:

“It shifts the legal burden of proof. .....The burden is, no doubt, the civil burden. He must show on the balance of probabilities, that he was not negligent.”

(Page 72, letter F)

On what weight to attach to the criminal conviction, his Lordship said:

“In any case, what weight is to be given to the criminal conviction? This must depend on the circumstances. Take a plea of guilty. Sometimes a defendant pleads guilty in error; or in a minor offence he may plead guilty to save time and expense, or to avoid some embarrassing fact coming out. Afterwards, in the civil action, he can, I think, explain how he came to plead guilty.

Take next a case in the magistrates’ court when a man is convicted and bound over or fined a trifling sum, but had a good ground of appeal, and did not exercise it because it was not worth while. Can he not explain this in a civil court? I think he can. He can offer any explanation in his effort to show that the conviction was erroneous: and it is for the judge at the civil trial to say how far he has succeeded. In my opinion, therefore, the weight to be given to a previous conviction is essentially for the judge at the civil trial. Just as he has to evaluate the oral evidence of a witness, so he should evaluate the probative force of a conviction.

If the defendant should succeed in throwing doubt on the conviction, the plaintiff can rely, in answer, on the conviction itself; and he can supplement it, if he thinks it desirable, by producing (under the hearsay sections) the evidence given by the prosecution witnesses in the criminal trial, or, if he wishes, he can call them again. At the end of the civil case, the judge must ask himself whether the defendant has succeeded in overthrowing the conviction. If not, the conviction stands and proves the case.”

In the case of Mcllenny v Chief Constable [1980] 2 All ER 227, Lord Denning MR summarised the law as contained in section 11 of the Civil Evidence Act 1968.

“Under it, a previous conviction is admissible in a subsequent civil action for the purpose of proving that the man committed the offence; and further ‘he shall be taken to have committed that offence unless the contrary is proved.’ How is a convicted man to prove ‘the contrary’? That is, how is he to prove that he did not commit the offence?

How is he to prove that he was innocent? Only, I suggest, by proving that the conviction was obtained by fraud or collusion, or by adducing fresh evidence. If the fresh evidence is inconclusive, he does not prove his innocence. It must be decisive, it must be conclusive, before he can be declared innocent.”

The facts in that case involved six men who had been convicted of the murder of 21 persons in a bomb explosion in two Birmingham public houses (“the Birmingham bombers”). The men had confessed to the bombings and charged with murder. In the trial within a trial, the confessions were challenged on the basis that they had been obtained involuntarily through the use of force. The plaintiffs alleged that they had been beaten by the police. A lengthy trial within a trial was conducted but the Judge found against the plaintiffs. He disbelieved them. The plaintiffs subsequently sued the police claiming damages for assault. Lord Denning MR dismissed the claim on the ground of issue estoppel. However his comments on the effect of section 11 of the Evidence Act 1968 as quoted above is relevant to this case.

In Hunter v Chief Constable [1981] UKHL 13; [1982] A.C. 529, (House of Lords) at page 544, Lord Diplock also Considered the application of section 11 of the Evidence Act 1968. He states:

“Section 11 makes the conviction prima facie evidence that the person convicted did commit the offence of which he was found guilty; but does not make it conclusive evidence; the defendant is permitted by the statute to prove the contrary if he can. The section covers a wide variety of circumstances; the relevant conviction may be of someone who has not been made a defendant to the civil action and the actual defendant may have had no opportunity of determining what evidence should be called on the occasion of the criminal trial; the conviction, particularly of a traffic offence, may have been entered upon a plea of guilty accompanied by a written explanation in mitigation; fresh evidence, not called on the occasion of his conviction, may have been obtained by the defendant’s insurers who were not responsible for the conduct of his defence in the criminal trial, or may only have become available to the defendant himself since the criminal trial. This wide variety of circumstances in which section 11 may be applicable includes some in which justice would require that no fetters should be imposed upon the means by which a defendant may rebut the statutory presumption that a person committed the offence of which he has been convicted by a court of competent jurisdiction. In particular I respectfully find myself unable to agree with Lord Denning M.R. that the only way in which a defendant cart do so is by showing that the conviction was obtained by fraud or collusion, or by adducing fresh evidence (which he could not have obtained by reasonable diligence before) which is conclusive of his innocence. The burden of proof of “the contrary” that lies upon a defendant under section 11 is the ordinary burden in a civil action: proof on a balance of probabilities: although in the face of a conviction after a full hearing this is likely to be an uphill task.”

What can be seen from the above authorities is that the law in the United Kingdom had developed to the stage where whilst it is accepted that a certificate of conviction is admissible as proof of conviction and commission of the offence, it is not necessarily conclusive. It may be shown in a civil proceeding that little weight or none should be placed on that conviction. The courts in the United Kingdom however have made it clear that this is likely to be an “uphill task”.

In Tofe v Teioli, the issue whether the certificate of conviction is to be accepted as well as conclusive proof of the commission of the offence appears not to have been raised and so not considered. Now that it has been raised with the relevant case authorities and applicable law in U.K. canvassed, and recognising that section 13 of The Evidence Act 1851 is silent on this particular point, it is my respectful view that the approach taken by the Courts, albeit based on their Evidence Act 1968, which was more specific to the point, is good law and should be adopted as the approach to be taken also by the Courts here. In so saying I agree with the views of the learned Chief Justice expressed in Tofe v Teioli but only add further, unless the contrary is shown.

APPLICATION:

In his submissions before this Court, Mr. Watt submitted inter alia, that the learned Magistrate did not ascertain if the plea of guilty entered was unequivocal. Had he done so, he would have come to the conclusion that it was equivocal and entered a not guilty plea instead. He pointed out that the record of proceedings showed that the second defendant had entered not guilty pleas initially and only changed his plea when he could not get a solicitor to represent him. The guilty plea was entered more or less to save time and expense. Mr. Watt submits that if the record of proceedings are taken into account, this court should place little weight on the certificate of conviction as evidence of negligence.

I have had the opportunity to consider the transcript of the record of proceedings of the Magistrate’s Court where the second Defendant pleaded guilty. In the facts, as read to the court, he admitted colliding with the girl and his brakes not holding when he attempted to stop. This with respect is clear admission of careless driving and evidence of negligence. In the circumstances, the submissions of Mr. Watt that the court place little weight on the certificate of conviction cannot succeed. I accept them as supporting the finding of negligence on the facts. But even if this court should place little weight on them, the evidence as adduced before me is more than sufficient to satisfy me of the negligence of the second Defendant.

NEGLIGENCE ON THE PART OF THE INFANT PLAINTIFF:

It is important to bear in mind that the issue for determination before this court is not whether the infant plaintiff is negligent but whether the second Defendant is negligent on the balance of probabilities. That I have considered and ruled in favour of the Plaintiff.

The alternative argument raised is that of contributory negligence. The law regarding contributory negligence as summarised in Charlesworth on Negligence, Sixth Edition paragraph 1211 reads:

“Infancy as such is not a “status conferring right” so that the test of what is contributory negligence is the same in the case of a child as of an adult, modified only to the extent that the degree of care to be expected must be proportioned to the age of the child.” (See also Glasgow Corporation v Taylor [1921] UKHL 3; [1922] 1 A.C. 44, 67 per Lord Sumner.)

A number of cases have been referred to which give specific examples where contributory negligence did not apply. In the case of Jones v Lawrence [1969] 3 All E.R. 267, referred to earlier in this judgment, it was held that the actions of a child in darting across the road without looking and colliding with a motor-cyclist travelling at about 50 m.p.h in a 30 m.p.h speed restricted area was held not to be guilty of contributory negligence. The child was aged seven years three months. Cumming-Bruce J. accepted evidence which had been led that children of such age were prone to forget what they had been taught about road safety, if something else was uppermost in their minds.

In Lynch v Nurdin ([1841] EngR 52; 1841) 1 Q.B. 29 the defendant had negligently left his horse and cart unattended in the street. The Plaintiff, aged seven, got upon the cart in play, whilst another child led the horse on. The plaintiff was thrown down and injured. It was contended that the plaintiff was guilty of contributory negligence in that he could have prevented the accident by the exercise of ordinary care. Lord Denman C.J. however said:

“Ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff’s situation; and this would evidently be very small indeed in so young a child.”

When the facts of this case are considered, I find on the evidence that contributory negligence cannot be imputed to the infant plaintiff for her actions in running across the road in the heat of play and colliding with the second Defendant’s vehicle. I find on the evidence before me that that was a normal reaction of a child of that age during play and not amounting to contributory negligence. Had the second Defendant kept a proper lookout and heeded the presence of children playing at the side of the Plaintiffs house (which I find against him), and had he ensured that the brakes were working normally and driven his vehicle in such a way as to steer or control the vehicle as to avoid the collision, either he could have avoided the collision or even if a collision had occurred, little or no harm would have occurred. In the circumstances, the defence of contributory negligence must be rejected.

Damages:

On the question of damages, I am satisfied the infant plaintiff sustained severe injuries and had to be hospitalised for more than two months. She is entitled therefore to an order for damages to be assessed if not agreed.

ORDERS OF THE COURT:

1. Judgment in favour of the Plaintiff for the negligence of the second Defendant.

2. Damages awarded in favour of the Plaintiff, to be assessed (in chambers) if not agreed.

3. The Defendants to bear the costs of the Plaintiff.

ALBERT R. PALMER
THECQURT.