Tort Problem Question Answer

Authors Avatar


I will be considering each plausible defendant in turn, whom Mr. Colin (hereby referred to as the claimant) could recover compensation for his injuries under the law of tort. The principle area that this question is concerned with is the breach in duty of care due to negligence. Hence, we will be looking at whether or not the claimant is liable to succeed in this claim. The burden of proof lies upon the Claimant to prove that the elements of negligence were present and hence make the defendant(s) liable.

        Claim Against Kylie

Claim against Negligence

When we consider the actions of Kylie (hereby referred to as Defendant 1), it is plainly visible that her actions were negligent as she had wandered outside of the school property and stood in the centre of the road. A reasonable man would not have done so. Pedestrians are supposed to be aware of the traffic and move along the road with caution and young children especially are not allowed to be alone in the road , as per clause 4 of the Highway Code’s Rules for Pedestrians,  which the Defendant 1 had failed to do. And so, we must conclude that the Defendant 1 had a duty of care towards the other road users, breached it, and hence caused the events that followed and the damages that were done. These align up to the elements of negligence and so the Claimant could bring up charges against Defendant 1 under negligence.


Even though there are no special provisions on account of liability upon children on the grounds of contributory negligence, Lord Denning concluded in the case of Gough v Thorne,

A judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably 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.

And Salmon LJ had agreed and added in the same case,

The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13 1/2 could be expected to have done any more than this child did.

Join now!

From these statements, we can conclude that a child cannot be found guilty of the offence, if she is not of a reasonable age in which she would understand and be able to decipher the situation and act in a way that could be considered a understandable and logical. Even though the law does not give any guidance towards a specific age from which a child could be held liable, we know that whether or not a very young child is guilty of contributory negligence is a fact to be assessed in the circumstances of the individual case. Having said ...

This is a preview of the whole essay