Key point
Where a defendant has acted negligently, it cannot be said in an answer to a claim on behalf of a child that the child should have taken reasonable care for his own safety.
Facts
- The appellant, a nine-year-old boy, asked for a pint of gasoline to be used for his mother’s car, which was subsequently supplied to him by an employee at the respondent’s gasoline station
- In reality, he had wanted the gasoline to make torches to be used in a game
- The gasoline caught fire and the appellant was severely burned
- The appellant and his father brought a claim against the respondent for damages in negligence
- Appeal was made to the UK Privy Council from the Supreme Court of Canada, which had found negligence on part of the respondent’s employee but reduced damages awarded to the appellant due to contributory negligence
Issue
- Should the injuries suffered by the appellant be attributed solely to the negligence of the respondent’s employee?
- On the facts, was there contributory negligence on part of the appellant?
Held (Privy Council)
- Appeal allowed; the injuries suffered by the appellant must be attributed solely to the negligence of the respondent’s employee
- On the facts, there was no contributory negligence on part of the appellant
Lord Du Parcq
Remoteness
- The respondent had acted negligently by ‘putting into the hands of a small boy a dangerous substance with which a reasonable man (…) would have foreseen that the child was likely to do himself an injury’
- The fact that the child had deceived the respondent’s employee had made no difference to the finding above
- The principle stated by Lord Denman in Lynch v Nurdin should apply: ‘The most blameable carelessness of this servant having tempted the child, he [the defendant] ought not to reproach the child with yielding to that temptation’
Contributory negligence
- Upon examination of evidence, it could not be shown that the appellant had greater knowledge of the properties of gasoline than a normal child of his age
- As such, in no way could any failure to take reasonable care for his own safety be imputed to the appellant
- On the facts, there was no contributory negligence
Commentary
This judgment reinforces the traditional English approach to contributory negligence in the case involving children established by Gough v Thorne [1966] 1 WLR 1387 which states that judges ‘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’.
In more recent cases, the courts have apportioned damages where appropriate; See for instance Jackson v Murray [2015] UKSC 5 [2015] 2 All ER 805.