Contributory negligence and minor defendants
The duty owed by road users of the road including pedestrians and cyclists to one another is well established.
Motorists are in control of a potentially deadly weapon and accordingly in comparison with pedestrians and cyclists, motorists must act with greater vigilance. The duty upon a driver is much higher than that of a pedestrian or cyclist.
The duty upon a minor is much lower than that of an adult.
Case law on the principle of contributory negligence is not binding and each case turns on its own facts.
The Claimant was driving along a road on a bright sunny day at about 4pm when she saw a group of three boys on the pavement on her side of the road.
One of the boys was walking, one was on a bike and she could not see whether the other boy was cycling or not due to a post box obscuring her view.
She was travelling at approximately 30mph. The boys were about 10 metres away when she first saw them.
One of the boys suddenly ran out across the road to the other side. He then turned, looked at his group of friends and put his hand out as if to say stop.
The Defendant was on his bike, he pushed his front wheel out before returning his bike to the pavement.
The Claimant just wanted to pass these children quickly as she did not know what they were going to do.
Suddenly the Defendant left the pavement as if doing a wheelie, he had his front wheel up in the air before placing it back on the ground and snarled at the Claimant. The Claimant swerved to avoid him. She swerved across the road and ended up colliding with a bus stop.
The difficulty with this case was firstly the Defendant was a minor, his duty would be much lower than that of an adult. He was also a cyclist and a motorist owes a much higher duty than a cyclist.
Whilst the young boy unexpectedly cycled into the road, the Claimant was on notice of children crossing the road. The Defendant minor had already pushed his wheel into the road prior to actually setting off and her response had been to increase her speed rather than slow down, therefore there was likely to be a lot of criticism of her actions.
The Claimant suffered extensive psychological symptoms including specific phobia for 16 months, soft tissue injury to the neck, pre existing symptoms of which were exacerbated by 18 months, a soft tissue injury to the chest which lasted for four weeks along with skin irritation, redness and stinging to her arm and face for three weeks. The value of the case was between £8,000.00 to £10,000.00.
As the Defendant was a minor he did not have any insurance himself. The Claimant Solicitors wrote to the Defendants parent’s home insurance company who agreed to deal with the claim.
An offer of 80:20 in respect of liability was put forward by the Defendant’s parents home insurers in favour of the Defendant which was duly accepted by the Claimant.
The Claimants position was of the driver of the vehicle, a potentially deadly weapon. Should this matter have proceeded to court , the majority of blame would fall upon her. Further her failure to react appropriately to the specific knowledge of the presence of children, potentially crossing the road, to have speeded up to get past them rather than to slow down or even come to a halt in case they should suddenly set off across the road, was likely to result in extensive contributory negligence against her.
As the Defendant was a minor, no agreement is binding unless approved by the Court and in the circumstances an agreement was reached directly with the Defendant’s parents home insurers under their failure to supervise in order to avoid the route of having to obtain approval of the court against a minor which may have proved difficult.
The Claim was eventually compromised in the sum of £1600.00 following the apportionment of contributory negligence.
At the outset this case may have seemed like it had no prospects of success, firstly the Claimant was a driver, secondly the Defendant was a minor cyclist, thirdly, minor’s do not have a body of insurance you can pursue against. However it was as a result of the hard work of the Claimant solicitors at Express Solicitors that the Claimant recovered a reasonable amount of damages that other firms of solicitors would most likely shy away from due to the complexity of the case.