What is the test for finding a child guilty of contributory negligence in a motor vehicle accident?

British Columbia, Canada


The following excerpt is from Gonzalez (Guardian of) v. Stewart, 1995 CanLII 1213 (BC SC):

17 In Gough v. Thorne, [1966] 3 All E.R. 398, Lord Denning stated at 399: 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. 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. That statement was approved by our Court of Appeal in Ottosen et al v. Kasper et al. (1986), 37 C.C.L.T. 270.

18 In McEllisturm v. Etches, 1956 CanLII 103 (SCC), [1956] S.C.R. 787 at 793, Kerwin C.J.C. stated: It should now be laid down that where the age is not such as to make a discussion of contributory negligence absurd, it is a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience.

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