• In the UK every year thousands of children are involved in accidents, resulting in serious injury or death.

    Child Safety Week runs from 1 – 7 June 2015 and is an annual campaign run by the Child Accident Prevention Trust to raise awareness of accidents involving the serious injury or death of children and how to prevent them. Accidents to children will inevitably happen as children are naturally inquisitive and easily distracted, making them less aware than adults of their surroundings and the dangers around them. However, many accidents involving children occur as a result of someone else’s negligence.

    If a child is injured due to another’s negligence, a parent or guardian can make a claim for damages on their behalf up to the child’s 18th birthday. Once the child turns 18, they can make a claim in their own right up until their 21st birthday.

    Schools and teachers have a common law duty of care for pupils in their charge. They are placed in a position of loco parentis which means they should care for their pupils in a similar manner to a reasonable parent. Teachers should take reasonable steps to ensure the safety of children in their charge.

    In Woodland -v- Essex County Council (2013) a 10 year old girl suffered serious brain injuries when she nearly drowned during a school swimming lesson. The school had appointed an independent company to provide swimming lessons. The Supreme Court ruled that the local authority owed the child a non-delegable duty of care, namely a duty to ensure that reasonable care was taken of her, not only by the school and its staff but also by any third party with whom the school contracted to perform its educational functions. Therefore, if a third party appointed by a school is found to be negligent, then the school would be in breach of its duty of care to the pupil.

    In contrast, in West Sussex County Council -v- Lewis Pierce (2013) the local authority successfully appealed a decision that it was liable for a laceration and damage to tendons suffered by a pupil when he accidently punched a metal water fountain, having intended to punch his brother but missed. The Court of Appeal ruled that there was no evidence that the water fountain was not reasonably safe. The edge could not be described as sharp, but even it if was sharp, it did not constitute a danger to children. The school was not under a duty to safeguard children from harm under all circumstances. The school was no more obliged to take such steps in respect of the water fountain than it would be in respect of any surfaces that a child might accidently injure themselves on whilst at school.

    It is possible for contributory negligence to be found against a child i.e. that they were partly to blame for the accident. In assessing the percentage reduction for contributory negligence the Court will take into account the degree of care that an ordinary child of the same age would be expected to take. Behaviour that may be deemed contributorily negligent on the part of an adult may not be considered such for a child, who may not have the same judgment. Generally, the younger the child, the less likely a Court would find that they had failed to take proper care.

    Gough -v- Thorne (1966) is the leading case on contributory negligence of children. The judge there stated that:

    “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, nor the experience of his or her elders. He or she is not to be found guilty unless he or she is blameworthy”.

    In the recent case of Jackson -v- Murray (2015) a 13 year old girl stepped straight out from behind her school minibus into the path of the respondent’s car. On appeal the correct application of contributory negligence was determined to be 50%. As the case law shows, even in relation to accidents to children the law applies much more common sense than the media often gives it credit for.

    There is no automatic right of compensation for children where they have been injured at school or on the road. However, Child Safety Week should be a reminder to us all that children cannot simply be expected to look after their safety. Whether as a parent, teacher or car driver legally and morally we do owe them a duty of reasonable care to ensure they are not injured by avoidable accidents.

    Lyn Gibbons specialises in personal injury claims for children. If you would like to ask Lyn a question about a personal injury claim involving a child or protected adult you can contact her on 01622 680422.

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