THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 17–1985)

REPORT ON THE LIABILITY IN TORT OF MINORS AND THE

LIABILITY OF PARENTS FOR DAMAGE CAUSED BY MINORS

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

© Copyright The Law Reform Commission 1985

First Published April 1985

CHAPTER 1: THE PRESENT LAW

THE LAW IN THIS JURISDICTION

(I) Liability of a Minor for his Wrongful Acts

(a) General Liability of a Minor in Tort¹

The law of torts is a wide area encompassing several specific branches of liability. Some torts, (e.g. a breach of the rule in Rylands v Fletcher² or the obligation imposed by section 3 of the Animals Act 1985,³) involve strict liability. Others, notably trespass to the person, to goods and to land, will not involve liability where the defendant neither intended to do the act of which the plaintiff complains nor was negligent in its regard.⁴ Still others, such as defamation or malicious prosecution, may in some circumstances require proof of a particular intent or state of mind. Finally, liability for the tort of negligence is determined by the objective standard of the “reasonable person”⁵ where the conduct of an adult defendant is in question. The question of the liability of a minor in tort is thus not a simple one. We have to consider each of these several types of tort, since each has different implications for the minor. As a general introductory observation, however, it may be noted that a child will not be guilty of any tort if his or her acts were not voluntary. We will shortly be considering what “voluntariness” means in this context.

So far as torts of strict liability are concerned it would appear that minority does not afford a defence, provided, of course, that the ingredients of the particular tort are

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shown to exist.

The torts of trespass to the person, to goods and to land present particular difficulties because of the general uncertainty as to the ingredients of these torts and the onus of proof. We will be examining this question in somewhat greater detail in our Report on the Liability in Tort of Mentally Disabled Persons, which we will be publishing shortly. At present we will confine ourselves to the statement that, wherever the onus of proof may lie, it seems clear that, in the absence of intention or negligence on the part of the defendant, no liability may attach to the defendant for a trespass.⁶ Thus, if by reason of lack of mental capacity, a child is incapable of forming the requisite intention, he or she will not be liable for a trespass.

It is at this point that the analysis becomes more complicated. Unlike in criminal law, where a great deal of intellectual effort has been invested in the development of concepts of voluntariness, intention and responsibility, there has been a dearth of detailed judicial consideration of these concepts in tort law. We thus, on occasion,⁷ find the courts using these terms interchangeably, with little attempt to provide a clear definition of their meaning or to analyse the important policy issues involved.

When we come to apply these concepts to minors these difficulties are compounded. The crudity of definition tends to work with particular effect where their position is concerned. The concept of voluntariness involves the direction and control over conduct by a conscious mind. Thus, for example, a person's movements when asleep or in the course of an epileptic attack are not voluntary;⁸ moreover, to take an example given in an English decision⁹ in 1616, “if a man by force take my hand and strike you”, my

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act will not be voluntary.

All these examples relate to involuntary conduct where it may be assumed that the actor is normally capable of voluntary conduct. Problems arise, however, where the question concerns conduct by persons who may not normally be capable of voluntary conduct – mentally disordered persons and young children. Here the courts have not yet articulated clear criteria for determining voluntariness. The actions of very young children have been held not to be voluntary: thus, in the Canadian decision of Tillander v Gosselin,¹⁰ where a three-year-old child removed an infant from her carriage and dragged her over 100 feet, fracturing her skull, Grant, J., of the Ontario High Court, said: “I do not believe that one can describe the act of a normal three-year-old child in doing injury to the baby plaintiff in this case as a voluntary act on his part”. Where, however, the child is somewhat older, the courts take the view that his or her conduct is voluntary,¹¹ even though the child may lack maturity of judgment and a sound appreciation of the seriousness of his or her acts.

So far as intention is concerned, the courts require that the actor should have acted with the purpose of causing the effect in question or, perhaps, if lacking that purpose, with knowledge that such effect is substantially certain to be produced by his or her conduct.¹² Again, so far as children are concerned, once this intention is established, questions of maturity of judgment and of sound appreciation of the seriousness (medical, financial or moral) of the act are not relevant to the determination of liability.¹³ This creates a significant incongruity¹⁴ since a child's negligence¹⁵ and contributory negligence¹⁶ are determined by criteria which take far greater account of the child's immaturity and lack of judgment.

(b) Contributory Negligence¹⁷

The classic statement of the relevant legal principles regarding contributory negligence was made by O'Byrne, J. in Fleming v Kerry County Council¹⁸:

A number of aspects of this statement of the law will require further consideration.

(i) Minimum Age

O'Byrne, J. is clearly correct in stating that “there must be some age up to which the child cannot be guilty of contributory negligence”. As Chief Baron Palles observed in Cooke v Midland Great Western Ry. of Ireland¹⁹,

Manifestly it would be nonsense to speak of a six-month-old infant as being guilty of contributory negligence. It is not easy, however, to specify exactly when a child does become capable of contributory negligence.

The approach favoured by O'Byrne, J. is for the court to determine in the particular case, having regard to the age and mental development of the particular child, whether he was capable of contributory negligence, and if so, for the jury to determine whether in the circumstances he was in fact guilty of it. This reflects the normal division of functions in tort cases, but the courts have been tempted to hold that at a particular age the child cannot be guilty of contributory negligence, however intelligent and experienced he or she may be. Such an approach might seem justified where the child is extremely young – an infant in arms for example – but, once the child is a little older, the danger of confusion in the court's role becomes a real one.

Some decisions have clearly recognised the true function of the courts on this question. Thus, in the Canadian decision

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of Gargotch v Cohen²⁰, Hogg, J. said:

Bearing in mind that some courts have not in fact taken this course and have instead made overbroad assertions as to capacity at a particular age (without regard to subjective factors) let us examine the decisions in more detail. In Donovan v Landy's Ltd.²¹, Kingsmill Moore, J. expressed the view (which appears to have been obiter) that the trial Judge had been correct in ruling that the plaintiff, a 6 1/2;-year-old boy, “obviously intelligent”²², who had “scutted”²³ on a bread van, was capable of contributory negligence. Most courts in common law jurisdictions are very reluctant to hold children much under this age capable of contributory negligence.²⁴ Thus in Kaplan v Canada Safeway Ltd.²⁵, Disbery, J., of the Saskatchewan Queen's Bench expressed the opinion that “[i]t would be absurd .... to impose upon this three-year-old plaintiff the duty of exercising reasonable care or to expect her to take precautions for her own safety”.²⁶

A similar reluctance to regard a child of three years as being capable of contributory negligence is apparent in an English decision²⁷, but throughout the common law world courts have on occasion been disposed to recognise that young children may be capable in certain circumstances of contributory negligence.²⁸

With regard to older ages, the courts have had little

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difficulty in finding the plaintiff child capable of contributory negligence. In Behan v Thornhill²⁹, the Supreme Court upheld the verdict of Davitt P., dismissing the action for negligence brought by a nine-year-old plaintiff arising out of a collision with the defendant's car. The plaintiff was described in the evidence as “a healthy boy”, “bright”, “intelligent”, “bright at school” and “bright for his age”. Davitt P. stated that he had “seldom seen a brighter boy in the witness box”.³⁰ He also stated:

Similarly, in Courtney v Masterson³², Black, J., in the High Court, stated that he was

By the time the child reaches the age of twelve years, this issue – if it arises at all³³– will almost certainly be resolved against him.³⁴

(ii) Standard to be Applied in Determining Whether Child was Guilty of Contributory Negligence

Assuming that the child is considered capable of contributory negligence, the question arises as to what standard of behaviour is to be applied to him. There is some degree of uncertainty as to the law on this question in

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this country. As has been mentioned, in Fleming v Kerry County Council³⁵, O'Byrne, J. stated that this is

O'Byrne, J. expanded on this approach by stating that

In Duffy v Fahy³⁷, the Supreme Court referred to this statement of the law. Lavery, J. stated:

In Kingston v Kingston⁴¹, Walsh, J. stated obiter:

In McNamara v Electricity Supply Board⁴⁵, the Supreme Court was called on to determine the contributory negligence of an eleven-year-old boy who was injured when climbing on the defendant's electricity sub-station. The boy had been warned by his father not to go to the sub-station. He was aware of the existence of a number of notices around it warning persons of the danger but claimed that he had never read them although he was able to read. The jury found that he had not been negligent and the defendant appealed against this finding (among others).

It is difficult to discern unanimity among the members of the Court as regards the proper standard to be applied.

Walsh, J. stated that

In this passage and the passage⁴⁸ following afterwards, Walsh, J. favoured a subjective standard, whilst considering that a more objective standard would have yielded the same result.

Henchy, J. considered that the relevant standard was that

Griffin, J. did not refer to the standard in express terms but he appears to have favoured the subjective approach to the extent that he considered⁵⁰ the plaintiff's capacity to read – rather than that of the ordinary eleven-year-old – to be of major significance.

Budd, J. concurred⁵¹ with the judgment of Walsh, J. The brief treatment⁵² of the issue by FitzGerald, C.J. does not indicate a clear leaning towards either the objective or subjective approach.

In Brennan v Savage Smyth & Co.⁵³, in 1982, the Supreme Court again considered the question of a child's contributory negligence. There a 7 1/2;-year-old child was injured when he was crushed by a reversing van. The child had been “scutting” on the rear bumper. He had pretended to run away from the van, to make the driver think that he was not “scutting” on the bumper. The driver was unable to

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see the child when he was reversing. The accident occurred on a service road near a large complex of corporation flats. The Supreme Court held on the evidence that the driver had been negligent, although there was some disagreement as to the basis of this holding. On the question of the child's contributory negligence, the Supreme Court unanimously altered the jury finding of 5% to 25%. O'Higgins, C.J. said:

In this passage, O'Higgins, C.J. appears without question to endorse the subjective formula of a child's age, intelligence and experience. The other judgments do not consider the question in great detail. It is worth noting Henchy, J.'s observation that the plaintiff, although only 7 1/2 years old, had “furtively, wilfully and in a way that he knew to be prohibited and to be fraught with the risk of

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injury, put himself in the position of danger which resulted in the accident“.⁵⁵ The general tenor of this statement suggests a subjective rather than objective approach.

Although the question is still to some degree uncertain⁵⁶, it would appear that the better view is that the contributory negligence of a child in this country is to be determined by his age, his mental development and possibly his general experience – in other words, by what is referred to as the subjective test. It would surely be straining the language of O'Byrne, J. very far to suggest that he was proposing that the standard of mental development of an “ordinary“ child of the same age as the plaintiff should be applied. If he had intended to propose such a standard, he would surely have said so in clearer terms. What he did say would appear to be consistent only with the subjective approach.

The subjective approach has widespread support in the common law provinces of Canada⁵⁷, in South Africa⁵⁸ and in the common law jurisdictions⁵⁹ of the the United States⁶⁰. The position in England is uncertain⁶¹. In Australia in the wake of McHale v Watson,⁶² there is considerable uncertainty as to the extent (if at all) to which the intelligence and experience of a child should be taken into account.

(iii) Effect of the Civil Liability Act 1961

Section 34(1) of the Civil Liability Act 1961⁶³ introduced a system for the apportionment of liability in cases where the plaintiff was guilty of contributory negligence. It provided that in such cases

The question has arisen in the United States⁶⁴, Australia⁶⁵ and South Africa⁶⁶ as to whether, in making this determination, regard is to be taken of the youth of the child not only in determining, initially, if he is negligent but also, having decided that he was, in determining the “degree of fault” to be attributed to him. It has been argued – successfully in South Africa, but not so in the United States or Australia – that to have regard to the child's youth as a factor in mitigation of his responsibility is unfair once he has been adjudged negligent according to the reduced standard of care appropriate to children. In effect, it is argued, this is allowing the plaintiff to have undue allowance made for his youth. Against this, it has been said that preserving the distinction does “not import two different tests but merely temper[s] the wind to the shorn lamb.”⁶⁷

It would appear that in this country⁶⁸ the child's youth will be permitted to be taken into consideration in determining his degree of fault under section 34(1) of the Civil Liability Act 1961⁶⁹.

(c) Negligence

The position regarding the negligence of a child is not entirely certain in the absence of judicial authority. There have been statements⁷⁰ to the effect that minority does not afford a defence to an action for negligence but the better view⁷¹ appears to be that the negligence of a child should be judged by the same standard as that regarding his contributory negligence⁷². Despite strong

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pressure from certain academic commentators, the courts in the United States have maintained the same approach⁷³. However, a qualification to the standard of conduct that is generally applied to children has been recognised in a number of common law jurisdictions, including Australia⁷⁴, New Zealand⁷⁵, Canada⁷⁶ and the United States⁷⁷. Courts there have held that where a child engages in a dangerous activity normally performed by an adult – such as driving a car or operating a power boat – he must be judged by the standard appropriate to adults. This approach does not appear to have found any explicit support as yet in our law. With regard to licensed drivers of seventeen years, the question is more of theoretical than of practical significance, since there will ordinarily be no reason, applying the subjective test of minority, to impose a more indulgent standard on the minor than would apply to an adult driver⁷⁸.

The Adult Activities Doctrine⁷⁹

We must now examine in more detail the development of the law which we have just mentioned, which has not yet been considered by an Irish court. This concerns the “adult activities” doctrine whereby a child who performs an activity which requires adult maturity or skill, such as driving a car, will be held to an adult standard of care, without regard to his age, intelligence or experience.

The development of this doctrine can best be understood through an examination of the experience in the United States. The leading decision⁸⁰ is Dellwo v Pearson⁸¹ where, in 1961, the Supreme Court of Minnesota decided whether a minor was liable for injuring the plaintiff when operating a boat with an outboard motor.⁸² The court

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conceded that the subjective standard was proper and appropriate to assess the contributory negligence of a child,⁸³ but stated that “this court has previously recognized that there may be a difference between the standard of care that is required of a child in protecting himself against hazards and the standard that may be applicable when his activities expose others to hazards.”⁸⁴ The court noted that, in the modern world, motor vehicles are readily available and so the court would “be skeptical of a rule that would allow motor vehicles to be operated to the hazard of the public with less than the normal minimum degree of care and competence.”⁸⁵

In the central passage of the decision, Loevinger, J. stated:

The court conceded that there undoubtedly were problems attendant upon the view but argued that there were problems in any rule that might be adopted on the question.⁸⁷ It noted that the most recent tentative revision of the Restatement⁸⁸ had adopted a broader rule than it favoured, whereby a child would be held to the adult standard whenever he engaged “in an activity which is normally undertaken only by adults, and for which adult qualifications are required.”⁸⁹ The court considered it unnecessary in the case before it to adopt a rule in such a broad form and therefore expressly left open the question whether or not that rule should be adopted in Minnesota. It concluded that it was sufficient for the present to say that no reasonable differentiation between different types of motor vehicles could be made and that “a rule requiring a single standard of care in the operation of such vehicles, regardless of the age of the operator, appears to us to be required by the circumstances of contemporary life.”⁹⁰

Dellwo v Pearson was followed one year later by Neilsen v Brown.⁹¹ There the Oregon Supreme Court imposed an adult standard of care in determining whether a sixteen-year-old licensed driver of a car had been guilty of gross negligence in its operation. The court was clearly influenced by the statutory requirement to have a licence to drive a car.⁹²

In 1962, the Illinois Appellate Court in Betzold v Erickson⁹³ was called on to decide the standard of care that should be applied to a thirteen-year-old driver of a lorry,

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where the statute prohibited granting a licence to a person of that age.⁹⁴ The court imposed the adult standard, arguing that the statute, in effect, declares that persons below the statutory age “do not possess the requisite care and judgment to operate motor vehicles on the public highways without endangering the lives and limbs of other persons.”⁹⁵ The court stated that the statute was designed to protect the public lawfully using the highways.⁹⁶

The court recognised that the failure to have a driver's license “does not of itself necessarily establish a causal connection between the operation of the motor vehicle and the injury.”⁹⁷ Nevertheless, it argued:⁹⁸

The adult activities doctrine has been widely applied.¹⁰⁰ It is most frequently found in cases involving children driving cars,¹⁰¹ motorcycles,¹⁰² motor scooters,¹⁰³ tractors,¹⁰⁴ lorries,¹⁰⁵ motorized go-carts,¹⁰⁶ snowmobiles¹⁰⁷ and minibikes.¹⁰⁸ The adult standard, however, has not generally been applied to children riding bicycles,¹⁰⁹ in spite of the dangers associated with this activity for young and old alike.¹¹⁰

The adult activities doctrine has proved difficult to apply once the perspective shifts away from the highway.¹¹¹ In

Purtle v Shelton,¹¹² the majority of the Arkansas Supreme Court held that an adult standard of care should not be applied to a sixteen-year-old defendant who injured a companion with a high-powered rifle when hunting.¹¹³ The court had “no doubt” that deer hunting is a dangerous sport¹¹⁴ but could not say that deer hunting is an activity normally engaged in only by adults. According to the court, “[a] child may lawfully hunt without a hunting license at any age under sixteen .... We know, from common knowledge, that youngsters only six or eight years old frequently use .22 caliber rifles and other lethal firearms to hunt rabbits, birds and other small game.”¹¹⁵

The court argued that, if it imposed an adult standard in the circumstances of the present case, it would have to be prepared to explain why the same rule should not apply where the gun was an ordinary shotgun, where the minor was hunting rabbits, or where a six-year-old was shooting at tin cans with an air rifle, “[n]ot to mention other dangerous activities, such as the swinging of a baseball bat, the explosion of firecrackers, or the operation of an electric train.”¹¹⁶ The majority was “unwilling to lay down a brand-new rule of law, without precedent and without any logical or practical means of even surmising where the stopping point of the new rule might ultimately be reached.¹¹⁷ Subsequent decisions regarding the use of guns are in accord.¹¹⁸

The courts have refused to apply the adult standard not only where the shooting is related to hunting but also in cases where no question of a hunting rationale arises. Thus, in LaBarge v Stewart,¹¹⁹ the standard appropriate to children was applied where a revolver fired when its sixteen-year-old owner was attempting to demonstrate to a fifteen-year-old guest how Russian roulette was played.¹²⁰ Also, in Thoman v Iman,¹²¹ the same standard was applied where an eleven-year-

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old child took a shotgun (which was there to protect the family against intruders) from his parents' bedroom and accidently killed his young cousin.¹²² In the latter case, however, the court referred to the fact that “[i]n the rural districts of this state children .... have always used guns both for target practice and hunting under differing circumstances” as a reason for not imposing the adult standard.¹²³

In Goss v Allen, the New Jersey appellate court applied the adult standard of care to a seventeen-year-old skier.¹²⁴ The Supreme Court reversed.¹²⁵ It found nothing in the record to support the appellate court's conclusion that skiing was an activity which might be dangerous to others and was normally undertaken only by adults.¹²⁶ The Supreme Court considered it “judicially noticeable that skiing as a recreational sport, save for limited hazardous skiing activities, is engaged in by persons of all ages.”¹²⁷

The court did not dispute the general proposition that “certain activities engaged in by minors are so potentially hazardous as to require that the minor be held to an adult standard of care.”¹²⁸ it considered that “[d]riving a motor vehicle, operating a motor boat and hunting would ordinarily be so classified.”¹²⁹ The court noted, without further clarification, that as to the activities mentioned, New Jersey law requires that a minor must be licensed and must first demonstrate the requisite degree of adult competence.¹³⁰

The dissent is worthy of particular attention since it goes to the core of the conceptual rationale for the adult activities doctrine put forward by the majority. Justice Schreiber considered that there were “several inherent difficulties in and inequitable consequences”¹³¹ of the rule adopted by the majority:

The imposition of an adult standard on a child was taken to its furthest extent in the New York decision of Neumann v Shlansky.¹³³ The plaintiff was struck on the knee by a golf ball driven by the defendant, an eleven-year-old boy. The boy had “taken lessons and play[ed] regularly at his club.”¹³⁴ He was playing a par three hole of about 170 yards and the plaintiff was within 150 to 160 yards of him leaving the green of the hole when he struck the shot. The defendant shouted “fore” but was not heard by the plaintiff.¹³⁵

The trial judge charged the jury that the defendant was to be held to the standard of care of an adult and not to the usual standard of care of a child. The jury returned a verdict for the plaintiff. The defendant's motion to set

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aside the verdict and for a new trial on the grounds that the jury charge was erroneous as a matter of law was denied.¹³⁶

Marbach, J. considered that the analogy with driving a car was sufficiently strong to apply the same increased standard of care:

The court stressed that the defendant had considerable experience in learning and playing golf, sometimes in the company of adults, which meant that “[t]his particular infant defendant was for all purposes on the golf course as an adult golfer.”¹³⁸ This reference to the individual circumstances of the defendant bears a striking similarity

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to the subjective test, which the court was at pains to reject. It met this by arguing, unconvincingly, that in contrast to the approach it favoured, the subjective standard “does not adequately consider the objective nature of the game, the inherent risks involved and the undisputed fact that a golf ball is a dangerous missile capable of inflicting grievous harm no matter who hits it.”¹³⁹

In his concluding remarks, Marbach, J. appeared to backtrack from the clear adherence to the view that an adult standard should be imposed. He stated:

The effect of this equivocation is difficult to assess. Apparently it concedes that the adult standard is not to be applied to all children who play golf. If it is not to apply to a first-time player aged six years, the question arises as to whether it applies to one aged seven, eight, or eleven, the age of the plaintiff in the present case.¹⁴¹ Of course many six-year-old children, apart for having little physical competence when attempting to strike a golf

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ball, will not appreciate the dangers to others involved in their act. In contrast, most eleven-year-old children will have far greater understanding of these dangers. The real negligence of the defendant in this case lies, not in making a poor shot, but in deciding to make a shot at all at the time he did. Perhaps the court, in spite of its invocation of the adult activities doctrine, was making a distinction which may be more easily understood – and indeed supported – by reference to the classic standard applicable to children.

On appeal, the Supreme Court affirmed in a single sentence, “In short, when an infant participates with adults in a sport ordinarily played by adults, on a course or field ordinarily used by adults for that sport, and commits a primary tortious act, he should be held to the same standard of care as the adult participants.”¹⁴²

It may be argued that this criterion for the imposition of an adult standard of care is both too broad and too narrow: too broad because it extends to all sports played by adults, many of which have no inherent dangers for others; too narrow because it requires that the child's tortious act be committed when he or she is participating with adults in the sport. Assuming for the moment that the adult standard is ever appropriate for children, there seems little sense in making its application depend on the contingent and largely irrelevant question of whether or not the minor is accompanied by an adult when he or she acts carelessly.

Gulotta, J., in dissent, did not think “a valid analogy can be drawn between driving a golf ball and driving an automobile. It is true that harm can result from either, but so can it from baseball, football, archery and many other activities and surely we cannot have a special rule for each.”¹⁴³ Nor could he accept that golf was an activity normally engaged in only by adults. Natural experience

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contradicted this assertion: many teenagers were accomplished golfers, and members of school teams often attained scores of championship calibre.¹⁴⁴ On further appeal, the New York Supreme Court, Appellate Division, affirmed in a memorandum decision.¹⁴⁵

In New Zealand the adult activities doctrine has also been favoured, but with far less conceptual analysis. In Taurunga Electric Power Board v Karora,¹⁴⁶ the Court of Appeal held that a seventeen-year-old cyclist could be judged by the same standard as an adult as regards his contributory negligence arising out of his failure to observe traffic regulations relating to cycling on the left-hand-side of the highway. Myers, C.J. discussed this important issue in the following passage which, having regard to its importance merits extended quotation:

The Chief Justice considered that two Australian decisions¹⁴⁹ relied upon by the trial judge were not relevant as they were master-and-servant cases “to which special considerations may apply”.¹⁵⁰

Myers, C.J. conceded that “[t]here might well be a question of some difficulty in the case of a very young child who sustains an injury by accident while riding a bicycle or tricycle”¹⁵¹ but considered that that question could be left open for determination when it might arise.

In a concurring judgment Smith, J. considered that to allow

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a youth of seventeen years observe the standard merely of bicyclists of his own age would be a “dangerous doctrine”¹⁵² but he stressed that, with respect to children under the age of fifteen years, their age should be taken into account.

Taurunga¹⁵³ is an important decision in that it goes further than decisions in other countries, notably the United States,¹⁵⁴ in imposing an adult standard on child cyclists.

Taurunga may be contrasted with the later decision of Ralph v Henderson and Pollard Ltd.,¹⁵⁵ where Richmond, J. declined to hold that an adult standard of care should have been articulated when the jury were being directed on the question of the contributory negligence of a 16-year-old employee injured by an unfenced saw at his place of employment. Richmond, J. did not dispute the principle of imposing an adult standard on a child defendant “engaged in dangerous adult activities such as driving a car or handling industrial equipment”,¹⁵⁶ but he did not think that this principle could apply to the case before him as there was “no question of the plaintiff's work being harmful to others”.¹⁵⁷ He noted, however, that the jury had been left “entirely .... to decide for themselves”¹⁵⁸ the standard of care which the reasonable person of the age and experience of the plaintiff should have exercised in the circumstances as they existed. It was, he thought, a question of fact for the jury to decide whether that standard should be fixed at any lower level than would be expected from an adult, and, he added, “for all I know they may have well (sic) accepted the latter standard”.¹⁵⁹

In Australia two decisions on the standard appropriate to a minor engaging in an adult activity are worthy of note. In Tucker v Tucker,¹⁶⁰ Reed, J., of South Australia's Supreme Court imposed liability on a 16-year-old driver of a motor vehicle. He paid no attention to the driver's age, and

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determined the question of the driver's negligence in accordance with the adult standards, although there was evidence that the driver (at all events at the time of the trial two years later) possibly lacked the intelligence of an adult.¹⁶¹ The decision is of poor analytic quality and provides no principled basis for imposing the adult standard.

A contrasting approach was favoured by the Supreme court of Victoria in Broadhurst v Millman.¹⁶² The Full Court¹⁶³ held that the trial judge had erred in failure to make it clear in his instructions to the jury that in determining whether the plaintiff cyclist, aged 15 1/2 years, had been guilty of contributory negligence, the age of the cyclist was a relevent consideration. Neither Tucker v Tucker¹⁶⁴ nor Taurunga Electric Power Board v Karora¹⁶⁵ was cited in this decision and may well not have been brought to the court's attention.

(II) Liability of Other Persons for Minor's Wrongful Act

According to the decided cases, a parent is not as such liable for the torts of his or her children.¹⁶⁶

Parents¹⁶⁷ may, however, be liable for torts committed by their children in the following circumstances:

(a) Where the Parent has Directed, Authorised or Ratified the Act of the Minor

This has generally been considered to be the position by the commentators,¹⁶⁹ but the authorities are sparse.

In Waters v O'Keeffe,¹⁷⁰ the children of the defendants, without their authority erected a gate on their property. The plaintiff was injured when it fell on him when he was climbing it. The defendants were held not liable for his injuries since their children had acted without their authority.

Moon v Towers¹⁷¹ is the leading English authority. There, the Court held that there was no evidence of ratification on the facts of the case. There was some division, however, as to whether the parent would have been liable if ratification had been established. Erle, C.J. stated:

This would suggest some doubt as to the question of the principle of liability based on ratification but another statement¹⁷³ by the Chief Justice appears to assume that liability could attach on such a basis.

Williams, J. also appears to leave open the question of liability based on ratification,¹⁷⁴ but he favoured a broad application of the concept of ratification,¹⁷⁵ on the assumption that it would give rise to parental liability.

(b) Where there is a Relationship of Master and Servant Between Parent and Child

A parent may be vicariously liable for the torts committed by his child where a master-servant relationship exists between them.¹⁷⁶ Liability may be imposed not only where there is an express contractual relationship between parent and child (as, for example, where a doctor employs his daughter as a receptionist) but also where no formal contractual relationship exists between them. In many common law jurisdictions, children driving cars owned by their parents have been regarded by the courts in a service or agency relationship, so that liability is imposed on the parents in relation to the children's negligence.¹⁷⁷ These decisions have generally been regarded as sui generis, being considered to be no more than a device adopted by the courts to enable injured persons to recover compensation from insurance companies.¹⁷⁸ The decision of Moynihan v Moynihan,¹⁷⁹ however, adopts a different approach.

The facts briefly were that a two-year-old infant was injured when visiting her grandmother's home where she was scalded by a teapot as a result of the alleged negligence of her aunt, an adult woman who lived with her mother – the infant's grandmother. The infant sued her grandmother,¹⁸⁰ claiming that she was vicariously responsible for the negligence of her daughter, the infant's aunt. The trial judge, Gannon, J., withdrew the case from the jury but the Supreme Court¹⁸¹ reversed.

Walsh, J., who delivered the majority judgment (with which O'Higgins, C.J. concurred) based the liability on the hospitality extended to the plaintiff by the defendant:

Walsh, J. stressed that

A further passage of Walsh, J.'s judgment is of direct relevance in the present context. He stated:

Henchy, J. dissenting, saw

Moynihan v Moynihan¹⁸⁸ would appear to be of some significance in relation to the liability of parents for the torts of their children. Nevertheless it should be stressed that the decision proceeds on the basis of liability for control of domestic hospitality, which was “not in any way dependent upon the relationship of mother and daughter”.¹⁸⁹

(c) Where the Parent is Negligent in Affording his Child an Opportunity of Injuring Another

A parent may be negligent in affording his child an opportunity of injuring another.¹⁹⁰ The negligence may consist of a wide range of behaviour, which may be summarized conveniently under three headings.

(i) Dangerous Things

It may be negligent for a person to leave dangerous things within access of a child in circumstances where injury to the child or another is foreseeable. A clear case is where a person leaves a loaded gun within reach of a young child. Liability will not depend on the relationship between parent and child that may exist in such a case but rather on the foreseeability of harm.¹⁹¹ The leading Irish decision on the question is Sullivan v Creed.¹⁹² There the defendant, a farmer who had been shooting rabbits on his property, left his gun loaded and at full cock standing inside a fence on his lands. His fifteen-year-old son, not realizing that the gun was loaded, pointed it at play at the plaintiff and injured him severely. A verdict for the plaintiff was upheld.

In the Court of Appeal, FitzGibbon, L.J. stated:

A parent (or other person) may also be liable where he or she negligently entrusts a dangerous thing to a child in circumstances where injury to the child or another is foreseeable. In the English decision of Newton v

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Edgerley,¹⁹⁴ Lord Parker, C.J. observed that whether or not the entrustment was negligent “.... must depend upon the exact facts of every case”. In Newton, liability was imposed on the father of a twelve-year-old boy who allowed his son to own a .410 gun but who had instructed him not to use it when other children were present. He had given the boy some instruction in how to use the gun but had never instructed him on its use when others were present. The Court in Newton distinguished Donaldson v McNiven,¹⁹⁵ where the father of a thirteen-year-old was exempted from responsibility where he allowed the child to have an air rifle, on the ground (inter alia) that, in Donaldson, the point had never been taken that it was, itself, negligent on the part of the defendant to allow his son to have an air rifle at all.

In Gorely v Codd¹⁹⁵ the father of a sixteen-year-old boy, academically retarded by five and a half years but otherwise of ordinary mental development, who entrusted his son with a BSA .22 gun was exempted from responsibility when the boy shot another teenager (also mentally retarded), since the Court considered that the father had adequately instructed his son in the use of the gun. In Bebee v Sales,¹⁹⁷ however, liability was imposed when the defendant father allowed his fifteen-year-old son to continue using an air gun after he had received a complaint of misuse by the child of the gun. In Court v Wyatt¹⁹⁸ liability was imposed on the father of a fifteen-year-old boy who entrusted him with an airgun although he knew that the child was of such a disposition that “there was a real likelihood that he would not obey [any] instructions and ignore .... warnings”. In Rogers v Wilkinson¹⁹⁹ the father of a twelve-year-old boy who was involved in “what might be called an ordinary shooting accident” involving the ricochet of a pellet was exempted from responsibility, since he had adequately instructed his son in the use of the gun.

It would appear that liability relating to use of guns by children may also arise under the Firearms Act 1925.²⁰⁰ Persons under the age of sixteen years are not entitled to hold a firearm certificate.²⁰¹ It is unlawful for any person to sell to another a firearm or ammunition unless the other person produces a firearm certificate or proves to the former's satisfaction that he is legally entitled to have the firearm or ammunition with having a firearm certificate therefor.²⁰² The word “sell” is very broadly defined so as to include letting on hire, giving and lending.²⁰³ It would appear, therefore, that a parent who lawfully possesses a gun would be in breach of the law, with consequent possibly civil liability based on this statutory breach, if he gives the gun to his child who does not possess a firearm certificate and who proceeds to injure another person.²⁰⁴

(ii) Children with Dangerous Propensities

The second basis of negligence on the part of a parent may arise where a parent, who knows or ought to know²⁰⁵ of a particular dangerous propensity of his or her child fails to protect others against injury likely to result from it. Thus, for example, if the parent is aware that his or her child has attacked other persons previously²⁰⁶ or has displayed a tendency to steal²⁰⁷ or to set fire to property²⁰⁸ or drive dangerously²⁰⁹, the parent may be liable if he fails to take the necessary steps to protect others from harm likely to result from a repetition of this conduct.

The steps that the parent will be required to take will depend on the circumstances of the case. The proper approach may be to discipline the child, encourage him to behave differently, remove him from likely sources of temptation or warn his potential victim. Clearly the age

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of the child and the nature of the danger will greatly affect this question. It is settled, however, that the parent is not an insurer in such cases: his reasonable best may just not be enough to prevent the injury, in which case he will not be liable to the victim.²¹⁰

(iii) Lack of Proper Control

The third and final basis of liability in negligence on the part of a parent arises where the parent fails to control the child adequately so that an unreasonable danger to others – or indeed the child²¹¹– results.

In Curley v Mannion,²¹² in 1965, the Supreme Court held that it might be negligence for the owner and driver of a car to permit his passenger to open a door without ensuring that other roadusers would thereby be endangered. In this case, the 13-year-old daughter of the driver opened a door in the path of a cyclist. Ó'Dálaigh, C.J. stated that, in his judgment:

Walsh, J. considered that the steps which the person in charge of a car should take to protect others from injury must be determined in the light of the exact circumstances

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of each case:

In the English decision of Carmarthenshire County Council v Lewis,²¹⁵ the House of Lords discussed the question in relation to a nursery school, from which a four-year-old child escaped onto the highway, causing the death of the plaintiff's husband who crashed his lorry when attempting to avoid him. The case proceeded on the basis that the duty of the teacher in charge of the child “was that of a careful parent”,²¹⁶ and throughout the speeches, an appreciation of the implications of the decision for parents, more particularly mothers, is apparent. In discussing the question of the duty to be imposed on the defendant, Lord Reid stated:

There are few decisions on this subject, but it is easy to envisage cases where a parent's negligent control of a child may lead to injury to another. The escape onto the highway, as in Lewis,²¹⁸ is a classic case; consciously allowing a child to place himself in a position of danger which is likely to induce a rescue attempt is another example.

Two general aspects of parental liability remain to be considered.

The first relates to the relevance of the age of the child

Clearly, where the child is very young, the parents' responsibilities are very high and they will not normally be allowed to excuse themselves by having relied on their young children to behave in a particular manner, when their immaturity and inexperience would not warrant that trust. It has been well observed, however, that

The precise age at which parents cease to be responsible either vicariously or personally for injuries caused by their children is a question of some uncertainty. On principle it would appear that the fact that the child has

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reached full age should not of itself extinguish the liability of a parent under two of the three headings of liability considered above²²⁰ but that clearly a Court would be reluctant in the extreme to impose liability on parents in respect of injuries caused by their adult children unless the facts were somewhat exceptional.

The second area of uncertainty relates to the question of which parent is responsible under the headings of liability considered above

The decisions on parental liability do not contain any clear analysis of this question. Usually the father alone is sued; sometimes both parents are defendants; most rarely, the mother alone is sued. Clearly, the question of who is the proper defendant depends greatly on the facts of the case. If a father has supplied his child with a gun, he rather than the mother will appear to the plaintiff to be the more obvious defendant. If a mother who works in the home lets her child escape onto the highway from a store when she is shopping, it is not likely to occur to the plaintiff to sue the father who is at the time working in an office some miles away. In other words, the specific factual circumstances of the case have tended usually to point to one of the parents as the more appropriate defendant.

Having regard to constitutional, statutory and judicial developments, it would appear that the liability of parents would not depend on their sex, but rather on the particular factual circumstances of each case, against a legal background of equality of legal responsibilities relative to the upbringing of their children.

(III) Liability of Parents and Other Persons Arising from Criminal Acts of Minors

Section 99(1) of the Children Act 1908²²¹ provides that

The expression “guardian” includes

A number of questions²²⁵ regarding the section may be mentioned briefly. It is not clear whether liability under the section may be capable of being imposed on the parent when the child is in the charge of another – a schoolmaster or local authority, for example. Nor is it clear whether the concept of “neglecting to exercise due care” of the

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child is based on objective or subjective criteria.

The Law in Northern Ireland

The law in Northern Ireland is substantially similar to what has been described above. No proposals for reform of this area of the law have been made in Northern Ireland.

CHAPTER 2 LIABILITY OF MINORS IN TORT: PROPOSALS FOR REFORM

Introduction

In this chapter we will analyse the policy basis of the present law relating to the liablity of minors for their wrongful act, and the liability of parents for damage caused by their children. We will begin by considering the subject of the liability of minors for their wrongful acts.

Liability of Minors for the Wrongful Acts

At the risk of oversimplification we will divide our analysis into three sections: first, we will consider the question of a minor's contributory negligence and negligence; secondly, we will examine the question of a minor's liability for torts requiring a general or specific intention on the part of the defendant; and finally we will consider torts involving neither intention nor negligence on the part of the defendant.

(1) Contributory Negligence and Negligence

(a) Contributory Negligence

(i) The Relevant Criteria

Under present law, as we have mentioned,¹ some courts have been tempted to ask two questions in determining whether a child has been guilty of contributory negligence: first, whether the child was of such an age as to be capable of

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contributory negligence; and second, where the child was so capable, whether the child was in fact guilty of contributory negligence, having regard to his or her age, mental development and experience.

Let us consider possible avenues for reform. The first – and most radical – approach would equate the standard applicable to minors with that applicable to adults. There seems to us very little to be said in favour of this proposal² other than that it might be considered in some way to reflect the standard of “the reasonable person” of negligence law. Against this, we are of the view that such a standard would be manifestly unfair in that it would apply to a minor a standard of behaviour which on account of no fault of his or her own the minor child could not attain.³ Whatever might be said in this regard in relation to the minor's negligence in terms of accident compensation,⁴contributory negligence raises no similar considerations, since imposition of an adult standard would result in a minor failing to obtain compensation to which he or she would be entitled if judged by a standard which took account of his or her lack of maturity and his or her inexperience.

A second possible solution would be for the standard of a minor's contributory negligence to be determined by that appropriate to a reasonable child of the same age as the plaintiff. In favour of this solution it may be argued that it most closely resembles the standard applicable to adults, whereby subjective considerations of intelligence and physical capacity will largely be ignored.⁵ If the policy of negligence law is to “eliminat[e] the personal equation ....”,⁶ it may be considered that reference to the child's age is a sufficient concession to his or her youth.

As against this, it may be argued that reference to the child's age alone could yield an unsatisfactory result in a

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number of cases. Children mature at widely differing times. At certain stages of their development children show marked distinctions in their mental development.⁷ The yardstick of age would appear to us to impose a standard which could be unfair to child-defendants by penalising the slow developer, while being indulgent to the precocious child.

A third possible solution would be for the standard to be determined by that appropriate to a reasonable child of the same age and mental development as the plaintiff, without regard to the extent of the plaintiff's experience of the world.

This approach meets much of the criticism made against the second solution discussed above. Thus, where the mental development of a child is slower (or faster) than that of the average child of his age, the standard would allow the court to have regard to the difference. As against this, however, the proposed solution might be considered susceptible to criticism from differing standpoints.

From the objective standpoint, it might be argued that, where a person is an adult, his poor “mental development” may sometimes be related to his slow pace in maturing but on other occasions it is related to his inherent lack of capacity which will not improve with age. As a general rule, an adult who lacks intelligence is held accountable by the standards of a reasonable adult. Why, therefore, should a child who lacks intelligence not be required to reach the standard of a reasonable child? To eliminate this difference in policy, it would, of course, be possible for the law to specify that, where the child's lack of mental development was related to inherent mental incapacity which would not be likely to improve as he grew older, he would not be permitted to rely on this condition as an

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excuse for his careless disregard of his safety but, to the extent that his lack of mental development was attributable to slowmaturation, he should be excused.

Whether this distinction could easily be made in practice is, however, very doubtful. We suspect that it would make the task of the judge or jury unnecessarily complex, for the sake of a most theoretical notion of consistency of treatment between adults and minors.

This possible solution might also be criticised from the subjective standpoint. It might be argued that reference only to the child's age and mental development does not provide a sufficiently accurate reflection of the circumstances of the child in failing to have regard also to the child's experience.

There appears to us to be some merit to this criticism. It might be considered somewhat harsh to judge the lack of caution of an inexperienced child who knew little of the world and its dangers by the same standard as that of a child who had considerable experience of both.⁸

The fourth solution, which arises out of the previous criticism, is for the standard to be determined by that appropriate to a reasonable child of the same age, mental development and experience as the plaintiff. This is, of course, the approach taken by the courts under the present law. The advantages and disadvantages of this solution should by now be plain. The principal advantage is that it ensures that the child will not be judged by a standard higher than he or she can reasonably be expected to attain. There would appear to be three principal disadvantages. The first is that the solution would hold the bright child to a standard higher than that applicable to average children of his or her age. While at first sight this might be regarded

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as the necessary consequence of excusing the child who lacks normal intelligence, brief consideration of the problem will show that this is not so. The standard might be so defined as to allow due consideration to be given to factors of intelligence and experience lowering, but not raising, the child's capacity for caution. Such a criterion would hold the very intelligent child only to the standard of care appropriate to the average child of his or her age and experience. Overall, we consider that a qualification to the rule, drafted on these lines, would not be advisable. It might be difficult to apply in practice and there is the more fundamental objection in principle that, since the special rules regarding children are based on the view that a child is usually unable to reach the standard appropriate to an adult, a bright child should not be permitted to avail himself or herself of this reduced standard to any extent greater than is necessary to take account of his or her particular degree of incapacity.⁹

In opposition to this proposed solution it might be argued, secondly, that an adult may not normally plead his or her inexperience as a reason for not being held guilty of contributory negligence: why, therefore, should a child be able to have this factor taken into account? As against this it might be argued that lack of experience, in varying degrees, is a distinctive feature of being young¹⁰ and that the law relating to contributory negligence should take it into account in determining the standard appropriate to the particular child.

A final objection to referrring to the child's experience is that it may on occasion appear to penalise children living in communities with inadequate recreational and other resources. The very inadequacy of these resources may result in the children playing in situations of potential danger, especially near traffic. The children will, in

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time, develop a degree of experience of these dangers. If this experience is used “against” them as a reason for finding them guilty of contributory negligence, this may be considered unjust to them. We appreciate the force of this objection. It should, however, be noted that experience in vacuo is not relevant: only where the experience has been such as to educate the child as to the need for care should it be taken into account. If it lacks this quality, then it will not affect the child's capacity to take care; if it does have this quality, then it follows from the application of the subjective test that it should be taken into account, as one of several factors, in determining the issue of the child's contributory negligence.

Having considered the advantages and disadvantages of these four solutions, we consider that, on balance, the fourth solution, which represents the present law, offers the best approach to the criteria for determining the contributory negligence of children.

(ii) Minimum Age for Capacity for Contributory Negligence

The question of minimum age for capacity to be guilty of contributory negligence raises some difficult issues. It would appear to be incontrovertible that an infant of six months, for example, should not have the issue of his capacity for negligence referred to the jury for their determination. In this regard, the present law adopts a satisfactory approach. There are, however, some important problems associated with the present law. Three of them appear to require consideration.

First, there is a wide variation in the reported decisions as to what is the minimum age at which a child may be guilty of contributory negligence. This suggests that the relevant

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principles, although clear to comprehend in theory, are not so easy to apply in practice. The courts have tended to address the question of the capacity of children in general of a particular age, rather than the capacity of the child in question.

Second, the concept of “capacity” for contributory negligence suggests that the question is of an objective general nature. This may not be the best way of approaching the problem.¹¹ At a very young age, a child may have the capacity to be careless in basic but trifling matters – such as letting his plate fall, for example – whilst having no capacity to comprehend more complicated dangers, and consequently no capacity to be careless in regard to them. To perceive “capacity” as an “all-or-nothing” concept rather than a relative question, depending on the particular circumstances of the case, may lead to difficulties.

In dealing with such a complex phenomenon as the development of personal responsibility for one's behaviour, it may be considered to be far too simple an approach to reduce the issue (even as a preliminary question) to whether at a particular age children in general attain a capacity for legal responsibility. The manifest differences in the timing of development between different children makes this question a futile – even misleading – one to ask.

On account of these problems, it may be argued that, instead of requiring two questions¹² to be determined, the law should merely require the court to determine whether the child was guilty of contributory negligence, having regard to the circumstances of the case, including the age of the plaintiff as well as his intelligence and experience.

Such an approach appears to us to have much to recommend it.

It would remove the difficulties affecting the “capacity for contributory negligence” approach. One apparent objection to it might be that it is preposterous for the law to fail to exclude in specific terms the possibility of an infant of six months being considered negligent. On reflection, however, this does not amount to a serious criticism of the “single question” approach, which will yield the same solution as the “capacity for contributory negligence” approach, without any of the complications and possibilities for an unjust result associated with the latter approach.

Accordingly, we recommend that, instead of two questions, only one question should require determination, namely, whether, having regard to the circumstances of the case, including the age of the minor plaintiff, as well as his or her intelligence and experience, the minor was guilty of contributory negligence.

(iii) Maximum Age at which the Contributory Negligence of a Minor should be Judged by Subjective Standards

We must now consider the question as to the age at which the contributory negligence of a minor should cease to be judged by the subjective standard and should instead be judged by the objective standard applicable to adults. Three main possibilities present themselves:

Our preference is for the first of these possible solutions. Before mentioning why we came to this conclusion we should explain why we rejected the other two solutions.

The second solution did not appeal to us because it would involve distinctions that seem difficult to defend on policy grounds. As a result of the enactment of the Age of Majority Act 1985, which came into force on 1 March 1985, a person ceases to be a minor on attaining the age of eighteen or on marrying, whichever age is the younger. If the subjective test of contributory negligence were to cease to apply once a person is no longer a minor, then a married sixteen-year-old, for example, who is of slow mental development, would be judged by an adult standard when his or her unmarried twin, of the same mental development, would be judged by a lower standard. We consider that, on balance, justice requires that a person should not be required to behave according to a standard which he or she cannot in fact reasonably attain, by reason of the legal consequence of majority having attached to the act of marrying. It could, nevertheless, be argued that, if the distinctive rules of the law of contract appropriate to minors no longer apply to a person who has reached full age by marrying, then the same consequence should take place in regard to the law of contributory negligence. We appreciate the force of this argument. A distinction between contract and contributory negligence, so far as the minor is concerned, is, however, worth noting. Contract involves the free assumption of a legal relationship with another party, whereas contributory negligence lacks this dimension of the exercise of autonomy. Marriage involves such an important exercise in free choice that it is reasonable for the law to conclude that, if a person has sufficient

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maturity to marry, he or she also has sufficient maturity to enter into other contracts. But the fact of marriage does not, of itself, imply an adult capacity to take care for one's own safety. Thus, for example, a 15-year-old married person may not drive a car on the public roads. Moreover, the law of contract contains several features, including rules relating to duress, undue influence and inequality of bargaining power, which are designed to protect vulnerable persons. These rules can assist young people who have reached full age on marrying. The rules for contributory negligence contain no similar deference to adult plaintiffs. In rejecting the second possible solution, we should stress that we do so only after much consideration and with a full appreciation of its force.

Of the three possible solutions we have set out, we rejected the third because we do not think it affords a conceptually clear criterion for moving from the subjective to the objective test. The problems may be perceived from a passage in a judgment favouring the third approach where it was stated that:

As will be seen from this statement, before the “adult” test can be applied it must be considered appropriate, judged by the subjective standard of the youth's “intelligence, experience and judgment”. It would seem to us, therefore, a confusing redundancy for the legislation to provide that, where the subjective test showed that the youth could be judged by the standard appropriate to an adult, the “adult

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standard” should replace the subjective standard: in truth, the subjective standard has “done the work” in such a case, and has already provided the answer to the question of what standard should be applied to the particular youth.

We favour the first solution because it offers the courts a clear and workable rule. The only question is what age should be specified at which a person should move from the subjective to the objective test. In our view, the debate may be limited to one between the ages of sixteen, seventeen and eighteen. Each suffers from the potential for a limited degree of arbitrariness but we have come to the conclusion that sixteen would best represent the dividing line. Accordingly, we recommend that the maximum age at which the subjective test should be applied for all persons is sixteen years.

(b) Negligence

(i) Our General Approach

We now turn to the question of the negligence of minors. The present law relating to the negligence of minors appears to be the same as that relating to their contributory negligence.¹⁴ We must consider whether the standard of care for children in negligence should be more objective than that in relation to their contributory negligence. The degree of increased objectivity could range from deleting the reference to the child's experience or mental development to applying the full adult standard in respect of his or her conduct.¹⁵

The principal argument in favour of distinguishing between negligence and contributory negligence along these lines is that it will encourage increased compensation for accident

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victims.¹⁶ While compensation of accident victims is without question a desirable social policy, we doubt whether the imposition of a standard of care not otherwise defensible by reference to the child's capacity may be justified on this account.

Accordingly, we recommend that the standard of care for negligence should be the same as that which we have already proposed for contributory negligence, namely, that the standard should be determined by that appropriate to a reasonable child of the same age, mental development and experience as the defendant. We also recommend that the proposals we have made above regarding the minimum and maximum ages for contributory negligence should apply in similar fashion to negligence.

(iv) Minors Performing Adult Activities

We must now consider whether, as an exception to the general rule, the standard of care required of a minor should be that of an adult where the minor performs “adult activities” such as driving a car, using a gun¹⁷ or, possibly, playing sports normally played by adults.¹⁸ As we have mentioned, courts in the United States,¹⁹ Canada,²⁰ Australia²¹ and New Zealand²² have, to differing extents, imposed an adult standard on a minor who performs at least some of these activities. The arguments for and against imposing an adult standard will be considered in turn.

(a) Arguments in Favour of Imposing Adult Standard

Several arguments have been made in judicial decisions and in academic commentary in favour of imposing an adult standard on minors performing adult activities. Let us

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consider some of the principal ones.

The first argument is that “when a young person is engaged in an adult activity, which is normally insured, the policy of protecting the child from ruinous liability loses its force”.²³ This argument does not greatly appeal to us. Although the existence of insurance may make the imposition of an adult standard on a minor a matter of theoretical rather than practical significance to him, it seems to us that the existence of insurance should not, of itself, be a ground for imposing an adult standard if that imposition cannot be justified on other grounds.²⁴

The second argument is somewhat more metaphysical. It is that “when the rights of adulthood are granted, the responsibilities of maturity should also accompany them”.²⁵ This argument has some plausibility, since it may be considered fair to expect that if, for example, the keys of a car are given to a teenager he should behave in a responsible fashion and not abuse his freedom. It may, however, be argued that the teenager does not become any more mature simply because he is permitted to engage in the activity in question. Nor is his or her ability to drive a car improved by the legal permission to drive.

The argument appears to us to break down completely when we consider the position in relation to unlicensed young drivers, joyriders perhaps or underage drivers. Manifestly these drivers have been “granted” no “rights of adulthood” by the legislature, so far as driving the car is concerned.

Where the “adult activity” is not one for which any licence or permission from any agency of the State is required, the concept of the “rights of adulthood” being “granted” to the minor becomes somewhat unconvincing. To regard a twelve-year-old golf-player, for example, as having been granted a “right of adulthood” seems to us a curious way of assessing

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his position.

The third argument is that “the legitimate expectations of the community are different when a youth is operating a motor vehicle than when he is playing ball.”²⁶ The argument has been expressed in greater detail in the decision of Dellwo v Pearson,²⁷ which has already been quoted,²⁸ and in Daniels v Evans,²⁹ where the court interpreted provisions of the New Hampshire motor vehicle code as indicating “an intent on the part of our legislature that all drivers must, and have the right to expect that others using the highways, regardless of their age and experience, will, obey the traffic laws and thus exercise the adult standard of care.”

The argument proceeds on the basis of detrimental reliance – namely, that when drivers proceed down the road, they do so with the legitimate assumption that all other drivers will be driving at an adult standard. The simple refutation of the argument is that the drivers can make no such assumption. In general terms, they must be bound by notice of the fact that among the motoring community there are drivers – adult and minor – who are incompetent, thoughtless, intoxicated, hard of hearing, poor sighted, feeble or distracted.³⁰ More specificially, if they turn their attention to youthful drivers, they will probably be aware of the tendency among young people (whether teenagers or in their early twenties) to drive fast and, on occasion, recklessly. They will also appreciate that young drivers will necessarily tend to lack experience. The only assurance from the law upon which they may legitimately rely is that a young driver, if duly licensed, has succeeded in passing a driving test. What conclusion they care to draw from this fact is a matter for themselves, but it would surely be a travesty of the position to suggest that drivers may rely on young drivers to drive with care and competence

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when it is common knowledge that as a group they are less likely to do so than adults.

We think that the argument may also be criticised for ignoring the contingent and surprising ways in which accidents caused by minors (as well as adults) occur. The notion of a potential victim of injury from childhood games being able to protect himself or herself from harm by prior preparation³¹ will be misplaced in many cases, as where, for example, the stone from a catapult fired from a second-storey window hits the plaintiff on the back of the head.

The fourth argument is that “[w]hen a society permits young people of 15 or 16 the privilege of operating a lethal weapon like an automobile on its highways it should require of them the same caution it demands of all other drivers”.³²

This approach was clearly articulated in the case of Robinson v Lindsay:³³

There are two main difficulties with this approach. First, it offers no principled basis for imposing an adult standard of care on minors who happen to engage in “inherently dangerous” activities while applying a more sensitive standard to minors engaged in other activities which, though not inherently dangerous, are on particular occasions extremely dangerous – indeed possibly more so than some “inherently dangerous” activities.³⁴ Secondly, almost as many definitional uncertainties surround the concept of an “inherently dangerous activity” as used to be associated wiht the long-discredited concept of an “inherently dangerous thing”.³⁵

It may be argued that driving a car or a motorcycle is not, generally, an “inherently dangerous activity”. Of course it may become so when the driver is an immature teenager of slow mental development, or, for that matter when a drunken 50-year-old is at the wheel. But it would not necessarily be so where the driver is a 15-year-old, mature boy with plenty of experience of the responsible use of motor vehicles off the highway. If what constitutes and “inherently dangerous activity” must inevitably depend (interalia) on the individual circumstances of the actor, we have a doctrine far different from the “adult activities” doctrine currently applied by the courts in several foreign jurisdictions. For, on this analysis, there should be no simplistic imposition of an adult standard of care on every teenage driver; instead, in every case the court would have to determine whether, having regard to the driver's particular circumstances and the activity in which he or she engaged was an “inherently dangerous” one. Apart from the complexity that this procedure would involve, it would also have the unfortunate result that those very factors which generally contribute to relieving a child from the attribution of negligence or contributory negligence – his or her age, intelligence and mental development – would add weight to the millstone subjecting the child to an adult standard of care.³⁶

One way of avoiding these difficulties would be for the court to hold that certain activities invariably are “inherently dangerous”, without regard to context. Thus “driving a car” would be categorised as “inherently dangerous”, whether the driver is young and immature or is adult, experienced and expert. The price of this approach, of course, is the loss of credibility where the activity is being performed by a competent person. It is true that, even in such circumstances, the activity has a potential for danger but almost every activity has this potential. It is

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the total context which determines the degree of dangerous potential of an activity. Thus, where an expert driver drives a car carefully down a suburban road at 6 a.m. on a sunny summer's morning, the potential for danger is small, less in fact than if a cyclist were to travel recklessly at speed along a crowded footpath. This type of comparison and balancing of risks is the essence of negligence law, and the process could be restricted unduly if particular activities had to be categorised as “inherently dangerous” without regard to the actual likelihood or gravity of injury, the social utility of the activity on the particular occasion and the cost of prevention.

(ii) Conclusion and Recommendation

Having considered the arguments for and against the imposition of an adult standard of care on a minor where he performs adult activities, we consider and accordingly recommend that, having regard to the inherent injustice and uncertainty of this approach, no such qualification to the general criteria for determining the negligence and contributory negligence of children should be introduced into our law.

Does this mean, therefore, that, where a child drives a car on the road, possibly having taken it without the consent of the owner, these criteria will make it likely that the child may be found not to be negligent if his or her incompetent driving results in injury to another roaduser? The answer must be that, for all practical purposes, it will not. First, it should be noted in this context that we have already proposed that at sixteen the negligence of a child should be determined by the standard of care appropriate to an adult. For children who drive cars under that age, the reference to the child's age, intelligence and experience

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provides no avenue of escape in the overwhelming majority of cases. Virtually no child over the age of three of four could credibly assert that he or she was unaware of the dangers of driving a car on the road, at a young age, without proper training. Moreover, the possibility of liability attaching to the child for breach of statutory duty³⁷ or to the child's parents or other persons having care of the child for negligent control should also be taken into account.

Nevertheless, it remains possible that in a very small number of cases application of the criteria apropriate to children could result in a child being relieved of liablity in circumstances where liability would attach if the adult standard of care were to be applied. Our law could, of course, impose an adult standard of care in such instances and hold the child liable. But it may be argued that to do so would offend against the principle of justice, since the law would thus require the child to act according to a standard beyond his or her capacities. However attractive this may be as a pragmatic solution, we consider that it should not be accepted because of its injustice.

We consider that society as a whole should bear the responsibility of compensating victims of injury involving motor vehicles on the roads where the driver of the car causing the injury is a child, and by reason only of his or her particular age, mental development and experience is free from liability which would otherwise attach if the adult standard of care were to apply. For this very small band of cases, we recommend that there be established a fund for compensation to be paid for by the State. So as to prevent misunderstanding of our proposals we wish to stress the following facts.

We do not consider it to be our function to enter too far into the realm of economic policy by attempting to prescribe how the fund should be established and administered. We should, however, mention some practical matters relating to the legal aspects of our proposal. In cases involving injuries on the road involving the use of a motor vehicle where the driver is a child under the age of sixteen, the judge or jury, as the case may be, should determine first whether, applying the criteria applicable to determining the negligence of children, the driver was negligent. If the answer is that he or she was, then no question of recourse to the fund arises, and the case will proceed, as is usual, to consider the question of the plaintiff's contributory negligence, if any. If, however, the answer is that the child was not guilty of negligence, then the judge or jury, as the case may be, should determine whether, applying the adult standard of care, the driver would have been liable in negligence. If the answer is that he or she would not, then again no question of recourse to the fund arises.

It is only where the answer to this second question is in

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the affirmative that the fund is relevant. In such circumstances, the issue of the plaintiff's contributory negligence (if any) should also be determined and apportionment made, according to the respective degrees of departure by the plaintiff³⁸ and the defendant “from the standard of behaviour to be expected from a reasonable man or woman in the circumstances”³⁹ rather than by reference so far as the defendant is concerned, to the standard of behaviour to be expected from a reasonable child of his or her age, intelligence and experience.

The fund would have to compensate a plaintiff guilty of contributory negligence, not for the total amount of his or her damages, but instead for the amount subject to the deduction of whatever sum may be apportioned for contributory negligence.

We must also consider the position arising where there is recourse to the fund and the minor driver counterclaims against the plaintiff. Should the minor be entitled to whatever compensation he or she may obtain, without a duty to hand over part of all of this award to the fund? On first thought perhaps it might seem fair that the child should be placed under an obligation to hand it over, but on a more considered judgment it becomes clear that it would be unjust to deprive the minor of compensation merely because of the fact that, through no fault of his or her own, the plaintiff was injured and received compensation from the fund.

Finally it is worth noting that the victims of injury on the road face many significant problems in the practical matter of obtaining compensation.⁴⁰ For example, the driver may be unidentified, uninsured or without resources.⁴¹ This field is a very large one, well beyond the scope of the present Report which is concerned only with the specific

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issue of the liability in tort of minors and of parents.

Torts of Trespass to the Person, to Goods and to Land

We must now consider the question of the liability of a minor for the torts of trespass to the person, to goods and to land. Irish law could benefit from a clear modern statement by the courts of the present status of some old rules relating to these torts generally. In particular it would be desirable to be clear on the questions of where the onus of proof lies and on the exact nature of “fault” in these torts.

In this Report we will proceed on the basis that, wherever the onus of proof may lie, a defendant is not liable where his or her act was done neither negligently nor with the intention of bringing about the contact which constitutes the trespass.

The exact scope of the concept of negligence in this context is not clear. We do not consider that it is necessary to attempt to resolve this problem here. We are satisfied that, whether or not the concept of negligence in actions for trespass carries with it the notion of “duty” which attaches to the tort of negligence, the only question that is of any practical significance in relation to minors is the standard of care. On that question we consider that the detailed recommendations which we have already made should also apply in the present context.

The question of intention, however, raises a different issue. As we have seen, a minor will be liable where he has such mental capacity that he is able to “will the consequences” of his act.

Is this a sound approach or is it too simplistic? Let us examine a criticism which could be made regarding it.

A very young child may be aware of the probable consequences of his or her actions and may actively desire to bring them about but it may be argued that this species of “intent” should not be regarded as the same, psychologically or morally, as that of an older person. The young child's lack of maturity, lack of full appreciation of the consequences of his or her action and incompletely developed sense of moral responsibility will all serve to differentiate his or her conduct from that of an older person.

As against that, it may be replied that even for adults the torts of trespass to the person, to goods and to land are relatively insensitive to the psychological and moral forces that may have encouraged the actor to behave as he or she did. The law seeks to resolve a simple question: whether the actor intended to do something which constitutes an unpermitted contact with the person, goods or land of another. If the actor did, the law is not at all concerned with why he or she did so or what it felt like, unless the actor puts forward some ground which fits into a recognised, well-defined privilege or justification – consent, for example, or self-defence.

Why, therefore, it may be argued, should children be treated differently, provided they are aware, in the simplist sense, of the probable immediate effects of their actions and desire to bring these results about? One reason for distinguishing between adults and children here is that the limitations on a child's perspective are not something exceptional: they are a normal part of being a child. On this basis it may be argued that the law should not ignore the inevitable limitations of the child's perceptions by

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reference to another group – adults – for whom a narrowness of perspective is an exceptional rather than inherent phenomenon.

A further argument in favour of introducing a more sophisticated rule for trespass by a child is that the present law of trespass contrasts starkly with the law of negligence and contributory negligence, where the principles are sensitive to the child's lack of mental development.

The problem with making the torts of trespass to the person, goods and land more sensitive to children's immaturity is, of course, that the change may introduce undue uncertainty into our law, as well, perhaps, as resulting in deserving plaintiffs being denied compensation. For example, where a gang of 12-year-olds beat up an old woman, it would be particularly unjust if an unduly lenient criterion of responsibility were to deny the woman compensation.

We fully appreciate the force of this concern. But fear of an unduly lenient criterion of responsibility can not justify the imposition of one that is manifestly too harsh. It must be the obligation of the law to establish a criterion of responsibility for children which fully harmonises with their capacity, no more and no less. After much consideration we recommend that in proceedings against a child under sixteen for trespass where it has been established that the child's action was voluntary and intentional, liability should be imposed unless the child can show, to the satisfaction of the Court, that, having regard to his or her age, mental development and experience, he or she had not such personal responsibility for the action that it would be just to impose liability on the child for the action. This test has clear echoes of the approach favoured in negligence proceedings. Although there one is dealing with conduct that is not necessarily

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intentional, we consider that the analogy is helpful. It should be noted that, in our proposed modification of the present law, the onus of seeking relief from liability rests on the defendant. We appreciate that the test for exemption is expressed in general terms, but we consider that this must necessarily be so in order to give the court sufficient flexibility.

(c) Torts in Which a Specific Intention or Other State of Mind is an Ingredient

We do not see any difficulty with the existing law in relation to torts (such as malice in defamation or malicious prosecution, for example) which require proof of a specific intention or other state of mind as an ingredient of the commission of the tort. We recommend no change in the existing law on this matter.

Other Torts

Finally we must refer to torts other than those which we have already considered. Some of these torts involve strict liability, others involve distinctive rules attaching to particular torts, still others include, in varying degrees, the concept of negligence as an element which must, or may, be present in their commission.

We are satisfied that, so far as they relate to minors, they operate satisfactorily and that there is no need for general proposals for change. We consider that, so far as negligence is an element of these torts, the recommendations which we have already made regarding the tort of negligence should apply where the negligence of a child falls to be considered in the context of these torts.

CHAPTER 3 LIABILITY OF PARENTS AND OTHER PERSONS FOR DAMAGE CAUSED BY MINORS: PROPOSALS FOR REFORM

In this chapter we will examine the law relating to the liability of parents and other persons for damage caused by minors. The present law on this subject has not generated any substantial public controversy. It might, therefore, be considered that it would be best not to propose any changes in the present principles of liability. Nevertheless, in view of our recommendations on the subject of the liability of minors in tort, made in chapter 3, it seems to us advisable to examine the question of the liability of parents as well.

Should Parents Be Vicariously Liable for Their Minor Children's Torts?

Perhaps the best way of approaching the question is to analyse critically the proposal that parents should be vicariously liable for torts committed by their minor children. For the purpose of this discussion we will assume that the children are living with their parents.

In favour of this approach two principal arguments appear to merit consideration.

First, it may be argued that, if it is fair to impose vicarious liability on employers for the torts committed by their employees, there is much to be said for imposing vicarious liability on parents. In some respects, rearing a family has parallels with running a business;¹ moreover, tracing liability to the parents as a more likely financial

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source of compensation in the family than the children would be analogous to imposing liability on the employer.²

Secondly, it may be argued that it is frequently difficult and potentially unfair for an injured person to discharge the burden of proof of establishing that the parents are liable under the present law. The injured person rarely will have information establishing that the parents authorised or ratified the tort and he may well find it hard to discover the previous history of the propensities of the child who caused the damage. His plight, it may be argued, is somewhat different from that of the “ordinary” plaintiff who finds it difficult to prove his case on the facts. In the case of parental liability, the principles for imposing liability, although arguably fair in their expression, characteristically create an evidential problem for the injured person. The law has assisted plaintiffs in other cases where under evidential difficulties occur,³ and it may be considered that it should do so in the present context.

These arguments may, however, be criticised in a number of respects.

The first argument may be criticised on the basis that the analogy between parents and employers is not entirely helpful. A business exists for commercial purposes and the expenses involved in vicarious liability may be regarded as costs inherent in operating the enterprise. The family, however, is not primarily directed towards impersonal economic goals. While an analogy may be drawn between financially solvent parents (contrasted with their impecunious children) and employers (contrasted with their employees who may have less financial resources), it is no more than an analogy and it may be regarded as an undue extension of the “loss distribution” approach into an inappropriate area.⁴

The second argument may be criticised on the basis that it exaggerates the particular difficulties facing the victim of injuries caused by children. Proof of the legal ingredients of many torts⁵ requires the plaintiff to establish facts not readily accessible to him. Moreover many instances of negligence involve factual problems of proof for plaintiffs. To impose vicarious liability on parents may be considered to be too drastic a solution to one particular instance of a problem that arises in many areas of tort law.

It is worth noting, in this context, that at a conference organised by the Institute of Comparative Law, of the University of Ottawa, in 1963, a number of participants from civil law jurisdictions expressed the opinion that the common law approach was preferable to that of the civil law since it appeared to them to be:

We are of the view that it would be unjust to parents to impose vicarious liablity on them for the torts of their minor children to an extent greater than under the present law.⁷

Should Parents Be Strictly Liable for Damage Caused by Their Minor Children?

Next we must consider whether parents should be strictly liable for damage caused by their minor children.⁸

The first argument in favour of strict liability is based on analogies that may seem somewhat unfortunate: it has been said that having a child under one's care causes problems not dissimilar to those arising from having wild animals under one's control⁹ or to bringing upon one's property things likely to do danger if they escape.¹⁰ The law imposes strict liability in both these instances and it has been suggested that it should do so also in relation to damage caused by children.

Secondly it may be argued that making parents strictly liable for damage caused by their minor children fits in well with the policy of partial exemption of minors from liability in tort. It may be said that childhood should not be regarded in isolation. If the victim of an injury inflicted by a child is unable to obtain compensation from the child on account of the child's lack of maturity, then it may be considered reasonable and fair for him to look to the parents for compensation rather than allow the parents to hide behind the child's exemption from legal liability. The fact that many parents consider it their moral responsibility to compensate those injured by their children¹¹ may be seen as supporting this view.

As against the first of these arguments it can be said that rearing children should not be regarded as similar in any way to owning wild animals or to bringing dangerous materials onto one's property. Parenthood fulfils a vitally important social and moral function, which should be supported by the law and no law should equate children with wild animals.

As to the second argument it may be criticised on the basis that it fails to establish why parents (rather than other persons or the State, for example) should have to compensate an injured person merely because their own children, who

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caused the injury, lack sufficient maturity to be legally liable. Even though parents may represent a convenient financial target, their moral responsibility does not increase in direct proportion to their children's lack of responsibility.

The strict liability approach seems to us to be too drastic a solution, and one capable of working injustice on parents in cases where they have in fact done their best and where their child is incorrigible and deceitful, for example, and despite their best, reasonable efforts, succeeds in injuring another person.

Should There Be a Presumption of Parental Negligence Where a Person is Injured By a Minor Child?

We must now consider the more moderate proposal that the law should create a presumption of parental negligence where a person is injured by a minor child. This approach is favoured in many civil law jurisdictions, including Belguim,¹² France,¹³ the Federal Republic of Germany,¹⁴ Italy¹⁵ and Switzerland.¹⁶ A similar approach is favoured in Eastern Europe.¹⁷ In Central and South America, the provisions relating to the liability of parents and others for damage caused by minors generally are on the same lines as those in European civil law jurisdictions. Some countries include specific provision to the effect that:

In favour of this approach, it may be argued that it would give effect, in a far more balanced way, to the policy of

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encouraging parents to take reasonable steps to ensure that their children do not injure others, while at the same time ensuring that this burden is not so heavy that injustice would be done to them.

One of the principal advantages to the proposal is that parents who can show that they have in fact behaved reasonably will not be prejudiced. On the other hand, as we have mentioned, the injured person may have no direct knowledge at all as to how the parents have acted and, as a result, not be in a position to establish negligence on their part. For this reason alone, the presumption of negligence may be considered to work more fairly, without being oppressive on careful parents – in contrast to an approach based on vicarious or strict liability.

The arguments against this proposal reflect considerations similar to those already mentioned in opposition to the more radical proposals to introduce a principle of vicarious or strict liability.

First, it may be argued that a presumption of negligence would work unfairly in some instances. Where a person was injured by a young child, it could well be the case that neither the injured person nor the parents would have any means of finding out how exactly the injury was caused. The availabe evidence, in sum, might be entirely silent on the circumstances of the injury. In such a case the parents might be no more able to establish that they were not negligent than the plaintiff could show that they were. Placing the parents under a presumption of negligence in such instances would mean that parents who were not in fact negligent would be liable merely because the circumstances of the injury could not be known. This may be considered unjust to parents who have not been guilty of any lack of care in the control of their children.

Secondly, it may be argued that there is not sufficnet reason to create a presumption of negligence in relation to parents where no similar presumption exists in relation to employers¹⁹ or producers of goods. Being a parent is scarcely a reason for being subjected uniquely to the burden of such a presumption.

Thirdly, although in itself it would not amount to an argument against creating a presumption of parental negligence, it is a fact that such a presumption would involve very considerable difficulties, so far as policy and drafting are concerned.

Among others, the following difficult questions may be raised. Would the presumption apply to both parents equally in every case? Could it be held to apply to one parent only, after the evidence has been presented? Would it apply without regard to the marital status of the parents, and without regard to the presence or absence of a personal relationship between the parent and the child?²⁰ What effect would a court order for custody or access have on the presumption? Would the presumption apply to persons in loco parentis to the child? To step-parents? To baby-sitters? Could the presumption attach to an institution, such as a boarding-school, for example? Would the presumption apply to damage caused by minors of all ages²¹ or only apply to minors under a specified age,²² such as 16, for example? Would it ever apply to persons who have reached full age? To what damage would it apply? Should it be limited to cases where the minor acted wilfully or negligently or should it apply even where the minor has done no wrong.

We mention these difficulties, not because we consider them insurmountable, but because they show that what might at first seem a simple and sensible idea is certainly not

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simple and raises issues of policy that have no obvious or easy answer.

We have come to the conclusion, on balance, that it would not be desirable to introduce a presumption of parental negligence in regard to damage caused by minor children. We are satisfied that the present law is based on just and workable principles of liability so far as the negligence of parents is concerned.

Other aspects of the present law relating to the liability of parents for the torts of their children appear to us to be satisfactory and not to be in need of statutory change.

CHAPTER 4 SUMMARY OF RECOMMENDATIONS

A. Liability of Children for their Wrongful Acts

B. Liability of Parents for Damage Caused by Their Children

FOOTNOTES TO CHAPTER 1

FOOTNOTES TO CHAPTER 2

FOOTNOTES TO CHAPTER 3

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