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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gough (an infant) v Thorns [1966] EWCA Civ 5 (01 July 1966) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1966/5.html Cite as: [1966] 1 WLR 1387, [1966] 3 All ER 398, [1966] WLR 1387, [1966] EWCA Civ 5

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(From: Mr. Justice MacKenna - London)

		Royal Courts of Justice
		1st July 1966

JUDGMENT (on appeal as to liability) (without calling upon Counsel for the Appellant to reply)

THE MASTER OP THE ROLLS: On the 13th June, 1962, a group of children were crossing the New Kings Road. They were Malcolm Gough, who was 17; his brother John, of 10; and his sister Elizabeth, who was 13½. They were coming from the Wandsworth Bridge Road, crossing the Hew Kings Road, and going to a swimming pool on the other side. They waited on the pavement for some little time to see if it was safe to cross. Then a lorry came up, coming up the Wandsworth Bridge Road and turning into the New Kings Road. The lorry driver had got pretty well halfway across the road, towards the bollards, and he stopped at about 5 feet from the bollards. He put his right hand out to warn the traffic which was coming up the road. He saw the children waiting; he beckoned to them to cross; and they did. They had got across just beyond the lorry when a "bubble" car, driven by the defendant, came through the gap between the front of the lorry and the bollard, about 5 feet, just missed the eldest boy, and struck the young boy of 11, but ran into and seriously injured Elizabeth, of 13½. Now, on Elizabeth's behalf, there is a claim against the driver of the "bubble" car for negligence.

The judge has found that the driver was negligent. He said that the "bubble" car was going too fast in the circumstances, and that he did not keep a proper look-out because he ought to have seen the lorry driver's signal and he did not see it. He has found, therefore, that the driver of the "bubble" car was to blame and negligent.

But then there came the question whether the little girl, Elizabeth, was herself guilty of contributory negligence. As to that, the judge found that she was one-third to blame for this accident. I will read what the judge said about it. "Was there contributory negligence?", he asked. He answered: "I think that there was. I think that the plaintiff was careless in advancing past the lorry into the open road without pausing to see whether there was any traffic coming from her right. I do not think that her responsibility was very great. After all, the lorry driver had beckoned her on. She might have thought it unlikely that any traffic would try to come through the gap. She might have thought that if there were any traffic coming from that direction, it would wait until the lorry started to move or gave the all clear. She was, after all, only 13 years old. I assess her degree of responsibility at one-third".

I am afraid I cannot agree with the judge. A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety: and then he or she is only to be found guilty if blame should be attached to him or her. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy.

In this particular case I have no doubt that there was no blameworthiness to be attributed to Elizabeth at all. Here she was with her elder brother crossing a road. They had been beckoned on by the lorry driver. What more could you expect the child to do than to cross in pursuance of the beckoning? It is said by the judge that she ought to have leant forward and looked to see whether anything was coming. That indeed might be reasonably expected of a grown-up person with a fully developed road sense, but not of a child of 13½.

I am clearly of opinion that the judge was wrong in attributing any contributory negligence to Elizabeth, aged 13½; and I would allow the appeal accordingly.

LORD JUSTICE DANCKWERTS: I agree.

This seems to me a very bad case of negligence on the part of the driver of the "bubble" car. It is the kind of accident which occurs so easily when one driver pulls up courteously to let some pedestrian cross the road and another, selfish, driver comes thrusting past and causes an accident by so doing. The speed at which the defendant was proceeding was so great that he did not see the lorry driver's hand outstretched, and the unfortunate Elizabeth appeared merely as a "white blur" when he hit her. The facts seem to me to speak for themselves. The accident was wholly caused, in my opinion, by the carelessness of the defendant and the speed at which he was travelling.

As regards the point about contributory negligence on the part of Elizabeth, I agree with every word which the Master of the Rolls has said and I need not add anything, I think, in that respect.

I also agree that the appeal should be allowed.

LORD JUSTICE SALMON: I entirely agree.

This girl of 13½ was waiting perfectly properly on the pavement with her two brothers to cross the New Kings Road. The lorry, which had pulled out of Wandsworth Bridge Road, stopped in the New Kings Road to allow the children to cross. Its offside front wheel was about 5 feet from the bollard in the middle of the road. The driver held up his right arm to warn traffic coming from the east along New Kings Road to stop, and with his left arm he beckoned the group over. They crossed. The defendant's motor car, at what the judge has held to be an excessive speed, ignored the signal to stop, went straight through the gap between the lorry and the bollard, and knocked the plaintiff over and injured her quite seriously.

I think that this question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13½ could be expected to have done any more than this child did. I say, "any ordinary child".¹ I do not mean a paragon of prudence; nor do I mean a scatterbrained child; but the ordinary girl of 13½. I think that if any ordinary child of 13½, seeing a lorry stop to let her over and a lorry driver, a grown-up person in whom she no doubt has some confidence, beckoning her to cross the road, goes straight on, no one could be surprised. I agree that if she had been a good deal older and hardened by experience and perhaps consequently with less confidence in adults, she might have said to herself: "I wonder if that man has given the proper signal to traffic coming up? I wonder if that traffic has heeded it? I wonder if he ought to have beckoned me across when he did, whether he looked behind him before doing so?". She would not have gone past the front of the lorry without verifying for herself that it was safe to do so. But I think it would be quite wrong to hold that a child of 13½ is negligent because she fails to go through those mental processes and relies unquestioningly on the lorry driver's signal.

The finding of contributory negligence cannot be supported, and I would agree, therefore, that the appeal should be allowed.

JUDGMENT (on appeal as to quantum)

THE MASTER OP THE ROLLS: Miss Elizabeth Gough is now 17i years of age. Pour years ago, on the 13th June, 1962, in an accident which we dealt with this morning, she was injured, and the question is what the damages should be. Her right leg was broken, both the tibia and the fibula bones. She was in hospital for some weeks. She was discharged after seven or eight weeks in hospital. Then the plaster was removed, and there was other physiotherapy. She was eventually discharged as an out-patient in October of that year. She went back to school, I think, on the 1st October, and has been at school since. I expect she has left school now. The result of it is that the right leg, so far as the bones are concerned, is well healed. She had a broken collar-bone: that was soon healed. She also had, and has, a scar on her right elbow.

If the matter had stopped there it would not be regarded, in these Courts at least, as a very serious accident. Indeed when she was seen in December of 1962 by an eminent surgeon, Mr. Hume Kendall, he said that the fracture had united firmly but that there was a slight outward bowing (which we have seen in the Court), and there was a l¼ - inch shortening of the leg. "She has recovered full movements of the knee and ankle. As time goes on she will continue to improve, the shortening will be made up and the tibia will gradually straighten. In the meantime she should become symptom-free within the next three months". So there within nine months of the accident the surgeon thought she would be quite all right. But it has not turned out like that. That was too optimistic a report. In order to correct this shortening of the leg, she ought to have a different shoe, to have a raised shoe which would raise her foot by half an inch, or thereabouts, so that she could walk evenly. She was not told to have this raised shoe. She did not have it before the trial. She has gone on (as the doctor says) compensating for this shortening of the limb by tilting her pelvis - that is, her hip "bone, so that it protrudes a little. She has gone on for these last three or four years like that, walking along with this tilting pelvis; and she has no doubt suffered pain. She is not able to dance as she would like to do. She has tried to swim, but her legs ache after swimming. Indeed she is embarrassed by it when she meets people and in situations of that kind. She says, and has told the doctors, that the pain has been getting worse, not only at the site of the break but gradually extending down the leg: it is still bad,

What is the cause of that pain? Her own general practitioner and another doctor, Dr. Cramer, from Bromley, said that they thought it was organic, something to do with the accident itself; whereas Mr. Hume Kendall, the eminent surgeon, said he could not find any cause for it, it was what is called functional. She is not making it up: she has a real pain: but when she gets over the tension and the anxiety of her case at law it will get better. Whatever the precise cause of it, there is no doubt that she has had the pain up to date. But there is equally no doubt (and I am sure it is the best possible advice, and her mother has been helping her with regard to it) that she ought to be wearing different shoes. She has made a good effort, apparently, since the trial. She may find it a bit awkward now, and it feels different; but it is most satisfactory that, with her mother's encouragement and help, she is making a really good effort to wear better shoes, which should correct the whole trouble.

Mr. Hume Kendall was asked: "With a raised heel, a raise of half an inch to three-quarters of an inch, can you see any reason why this girl should not live a normal pain-free life for the rest of her life?". He said: "No, I see no reason why she should not". So that although it may take a little time before she gets over it all, the pain may get better and in all probability should get better.

Now, such being the injuries, what are the damages? The judge assessed damages for her at the sum of £2,750 general damages plus £12 special damage. We have had put before us all the medical evidence. We have had read to us the judge's reasoning. It seems to me that the learned judge was much too pessimistic about Miss Gough's future. He spoke in this way: "She may have to wear a surgical boot to correct the shortening of the leg". I do not think that any of the doctors really went as far as that. They all, when they were taxed with it, suggested a raised shoe. The learned judge said: "She may get away with a much thickened shoe sole". I think that it is reasonably certain that with the new shoe she will be able to walk evenly without any tilting of the pelvis. Then he said: "The pains will possibly go but if she continues to tilt her pelvis, it is likely that severe backache will supervene". The backache should go as soon as she has the raised shoe and gets used to wearing it.

It seems to me that the judge took far too pessimistic a view of this matter. Indeed, I am afraid that, comparing this award with other awards to which we are used in this Court, this is really an award for a broken leg which has been well mended, and all that is left is a l¼ -inch shortening. Even the effects of that shortening can be made good quite a lot by a raised shoe, without any permanent ill-effects. I realise, of course, that as a girl she would like to wear, like other girls, just ordinary normal shoes, and it is a drawback for her to have to wear a special shoe, but not all that much.

I think that this award was erroneous - so erroneous that this Court should interfere; and I would reduce it to the sum of £1,500 general damages. I would allow the appeal accordingly.

LORD JUSTICE DANCKWERTS: I agree.

It seems to me too that the amount of the damages awarded is so excessive and so much above the proper amount that we ought to interfere. I agree with the figure of £1,500 proposed by the Master of the Rolls.

LORD JUSTICE SALMON: I agree.

I think there may be a tendency for awards to be somewhat too little for really serious injuries and too much for less serious injuries. This case, I am confident, can be classified as a case of a less serious injury. I appreciate that this girl has suffered a good deal of pain and inconvenience and embarrassment during the last four years, having had a comminuted compound fracture of her right leg. But after all is said and done, this remains the case of a broken leg with the only permanent results being a very slight bowing of the leg (which we have seen) and with an inch and a quarter shortening of the leg. A half-inch, everyone agrees, is something which is quite common without any accident and causes no inconvenience at all. There was some doubt as to whether the pain arose from organic or functional causes. I agree with Mr. Pain that it does not matter much which, because Mr. Cramer, who said he thought it was organic, although he was quite unable to explain how the organic cause produced this effect, said that he hoped and believed the pain would clear up; and Mr. Hume Kendall was even more confident that it would go in time. There is no doubt that if this girl wears, as she is now beginning to wear under her mother's persuasion, shoes either with a built-up sole or perhaps an adjustment of ordinary shoes, an adjustment of the heel, the shortening of the leg can be and will be corrected. Once that goes, the strong probability is that within a very short time she will for all practical purposes be as good as she was before the accident, and the pain will disappear.

I think that, on any view, when one considers the awards made in these Courts in other cases, an award of £2,750 is indefensible, in spite of the gallant and persuasive attempt of Mr. Pain to defend it. I agree that the damages ought to be reduced to £1,500.

(Plaintiff's appeal on liability allowed with costs. Defendant's appeal on quantum allowed, with half his costs of the appeal. Award of general damages reduced to £1,500. Taxation of Plaintiff's costs in both appeals under Legal Aid and Advice Act. Total award of damages, £1,512, to be paid into West London County Court)