Ellis v Kelly (2018) EWHC 2031 (QB)

Ellis v KellyOn 20 September 2008, Caine Ellis who was 8 years old, went out to play with his two cousins at a local play park.

The play park was located on Gospel Lane in Birmingham. This was a quiet road with a play park on one side and a skateboard park and sweet shop on the other side of the road. There was a zebra crossing between the two. This was a busy area for children to be playing in. 

Gospel Lane was subject to a 30mph speed limit. Caine Ellis was allowed to go out and play without adult supervision only if he was accompanied by his two older cousins who were 10 and 11 years old. He was told by his mother to be careful and stay with his cousins.

Caine Ellis had been playing in the play park. He lost his cousins and therefore went across to the skateboard park to find them. He did not find them and therefore, returned to the play park.

Sadly, as he crossed back over the road to return to the play park, he was struck by a vehicle and sustained significant injuries. He was hit as he was in the controlled area of the zebra crossing but not on the stripes. He looked straight at the car but kept on running.

He was hit by a car travelling at 40mph. The driver of the vehicle was a local man and knew the area well.

Liability was admitted but contributory negligence was alleged as the boy had run out onto the road when the vehicle was approaching and towards his mother as she had not provided clear rules for the boy to follow when out with his cousins.

It was held that the boy had looked as he crossed the road but he had just misjudged the speed of the car as it had been travelling outside his experience. Had the vehicle been travelling at 30mph or less, the driver would have had time to react and stop in time.

A reasonable driver would have slowed down approaching the zebra crossing and been alert to the possibility of children running out. No contributory negligence was found in respect of the boy.

It relation to the boy’s mother, it was held that she was responsible for taking care of his safety. She had let him taste independence by being allowed to play without adult supervision. Mrs Justice Yip stated, “to hold a mother liable would impose a too high standard on the ordinary parent making ordinary decisions in the course of parenting…It would be wholly wrong to find the mother blameworthy.”

The driver of the vehicle was found to be 100% at fault.

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