Children and contributory negligence


Although liability in children’s road traffic accident claims is often easy to establish, the issue of contributory negligence can still arise.

Contributory Negligence

Contributory negligence means that any damages awarded to the claimant are reduced by an amount the court considers “just and equitable,” reflecting the pursuer’s share of the responsibility for the damage (s1(1) of the Law Reform (Contributory Negligence) Act 1945). The defender must prove that contributory negligence applies. Decisions are based on the specific facts and circumstances of each case.

Running into the Road

The law typically applies an objective standard of care, but age is a notable exception. Children are not expected to exercise the same level of care as adults, and their age is considered when assessing contributory negligence.

Jackson v Murray [2015] UKSC 5

In this case, a 13-year-old girl was struck by a car after emerging from behind her school bus and running into the road. The driver, traveling at about 50mph in poor light, did not slow down despite the presence of the school bus. Initially, the girl was found 90% liable for the accident due to her recklessness. On appeal, her contributory negligence was reduced to 70%, considering her age and the difficulty of assessing the car’s speed in poor light. The Supreme Court further reduced it to 50%, acknowledging the complexities of crossing a major road at dusk for a child.

Child Seats

Section 15 of the Road Traffic Act 1988 mandates that drivers ensure children under 14 are properly restrained. Specific regulations require children under 12 or below 1.35 meters in height to use appropriate child seats. If a child’s injuries could have been avoided with proper seating, the driver may be deemed partially responsible. However, Scottish courts have yet to provide clear guidance on this issue, so we look to English cases for insight.

J v Wilkins [2000] EWCA Civ 3024

A mother placed her two-year-old child on her lap with an adult seatbelt, which contributed to the severity of the child’s injuries in a collision. Despite the mother’s limited understanding of the risk, the court applied a 25% reduction in contributory negligence based on expert evidence.

Hughes v Williams [2012] EWHC 1078 (QB)

In this case, a child was injured while seated on a booster cushion not meeting safety criteria. Experts testified that proper use of a five-point harness seat would have minimised the injuries. The court determined a 25% contributory negligence, as proper restraint would have largely avoided the injuries.


To conclude, contributory negligence is a common argument used by defenders and neither children nor their parents are immune to such arguments being successfully made. 

While children are not judged by the same standards as adults, the standard of care expected will be measured by what can reasonably be expected of a child of the same age, intelligence, and experience. As such, their age will be a highly relevant factor when deciding whether contributory negligence should be applied and at what percentage. 

On the other hand, no leniency can be expected when a parent fails to safeguard their child. While the Scottish courts are yet to set clear guidance on contributory negligence in such cases, some guidance can be obtained from England where contributory negligence has been applied at 25% in cases where a child is not seated in the appropriate child seat. However, the assessment of contributory negligence is nevertheless highly fact-sensitive with each case being considered on its own.

Written by Stella Kankaanpaa

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