Kid-Plaintiffs

Rule #1: Children can sue if they are the victim of a tort, the only distinction being that they generally need a litigation guardian or, as they are called in some jurisdictions, a litigation friend.

But the world is turned upside down when it comes to stating the law as to whether a child can be held liable for their torts. For torts committed by individuals between the age of 0 and the age of majority, there is no clear answer.

Instead, the law serves up a series of basic rules and in the result, law both vague and the source of not just uncertainty, but also litigation.

Toddler-Defendant

Common law lawyers, such as the author of Winfield and Jolowicz on Tort assert:

"In the law of tort there is no defence of infancy as such and a minor is as much liable to be sued for his torts as is an adult."

Although that statement is both false and misleading, it does reflect the large measure of uncertainty and lack of cohesion in this area of the common law.

Rule #2: children of a very young age, say about 5 to 7 or below, are, to quote from Canadian Tort Law, 8th Edition: "totally immune from tort liability".

In 1927 (Acadia), Canada's Supreme Court stated the common law as follows:

"Children aged seven and nine years have by the common law the benefit of something in the nature of a presumption that they have not sufficient capacity to know that they are doing wrong. The presumption ... may be rebutted by evidence."

But not all authors are comfortable with drawing a line in the sand at the age of 5 or 7. In The Law of Torts, the author writes:kids with cigars

"There is no fixed age below which a finding of negligence cannot be made...."

In Halsbury's Laws of England, 2008, volume 5(3) "Children", at page 28, the authors do not set down a specific age:

"A child of an age at which he is capable of distinguishing between right and wrong is liable for the consequences of his own acts. "

In Walmsley, a five year old had been negligent in fact and in the result, had injured his bow-and-arrow playmate. It was held that he could not be found negligent because of his tender age.

Many Canadian jurists lean on a Supreme Court of Canada case of 1956, McEllistrum, to assert that the immunity only goes to the child five or younger. And yet, in McEllistrum, the court refused to accept that the age of six (6) was the absolute immunity threshold but preferred to leave the issue to the court to determine on a case-by-case basis. It is only where a child's age would make a finding of negligence "absurd", that there would be immunity from tort liability.

In Tillander v Gosselin, a little 3-year old tyrant grabbed a baby from her carriage and dragged her 100 feet. No one saw what else he did but when the adults found the baby, it had a fractured skull.

The 3-year old was sued and Justice Grant rejected the claim:

"In this action, the defendant's tender age at the time of the alleged assault satisfies me that he cannot be cloaked with the mental ability of the ordinary reasonable man and hence negligence cannot be imputed to him. That same condition satisfies me that he cannot be said to have acted deliberately and with intention when the injuries were inflicted upon the infant plaintiff.

"The defendant child, however, would not have the mental ability at the age of three to appreciate or know the real nature of the act he was performing. A child of that age emulates or imitates the actions of those about him rather than making his own decisions. In the present case there could be no genuine intent formulated in his mind to do harm to the child plaintiff or to perform whatever act he did that caused the injury."

Tender Age Child-Defendant

Rule #3: Children over the tender age, be that 5 or 7, are liable for negligence but only weighed against a child's version of the adult's test of the reasonable man, the reasonable child.

In McEllistrum:

"... it is a question for the jury in each case whether the infant exercised the care to be expected from a child of like age, intelligence and experience."

dangerous rulerThese words were repeated in the 1966 Australian case, McHale v Watson:

"... the standard by which (the child's) conduct is to be measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience."

Thus not the full reasonable man but the reasonable child!

In summary, a child is held to the standard of the reasonable and prudent child of his or her age, a difficult and elusive sliding and slippery scale.

In Tabb, Justice Garrow of the Ontario Court of Appeal merely wrote what all parents have known for millennia:

"One child at ten years may have more discretion or common sense than his brother at ten. In the present case, the younger brother of 7, on seeing the passing frieght train, sat down .. in safety and waited while his elder brother, with less discretion, passed on to the place of danger and was killled."

To further demonstrate how subjective this test can be, note these words of Justice Salmon in Gough where the defendant was 13-½ year old child in a contributory negligence action

"I do not mean a paragon of prudence; nor do I mean a scatter-brained child.; but the ordinary girl of 13½."

In Pollock, the little rascal threw nitric acid at a young girl inocently walking by, causing lifelong scars. He was held responsible.

In a 1998 case which went before the Court of Appeal of England, a 15-year old girl was playing sword fight with her schoolmate when one of the rulers broke and a shard of plastic shot into the plaintiff's eye, ruining it forever. The claim failed because in the context of two 15-year olds play fencing with plastic rulers, such an accident was not foreseeable.

The Intentional Tort

For intentional torts, since intention is an element of the tort, the tender age immunity is highly relevant, not to the standard of a reasonable child, but to presume an inability to form the requisite intention.

In Halsbury's Laws of Canada (2007), the authors write:

"Children may be excused from liability for intentional torts if they are incapable of forming the specific intent required to commit the tort in question, but they will be held liable if they are capable."

Kid in Adult Activities

Rule #4: When children engage in adult activities, such as snowmobiling, driving a car, they lose immunity for their negligence while so engaged.child bull fighting

In McErlean, Justice Robins of the Ontario Court of Appeal:

"... as a general rule in determining negligence, children are not required to conform to the standard of conduct which may reasonably be expected of adults. Their conduct is judged by the standard to be expected of children of like age, intelligence and experience. This is essentially a subjective test which recognizes that the capacities of children are infinitely various and accordingly treats them on an individual basis and, out of a public interest in their welfare and protection, in a more lenient manner than adults. A child at one end of the scale may be of such tender years as to be manifestly incapable of exercising any of those qualities of intelligence and experience which are necessary to enable him or her to perceive a risk and realize its unreasonable character while a child at the other end may be quite as capable as an adult of exercising such qualities. "

"There are, however, exceptions to this general rule. Where a child engages in what may be classified as an adult activity, he or she will not be accorded special treatment, and no allowance will be made for his or her immaturity. In those circumstances, the minor will be held to the same standard of care as an adult engaged in the same activity."

Where's The $

Sometimes, it's not the liability of a child that frustrates justice: it's his or her ability to pay. Even if you sued a child successfully, by the time you finished the judicial sale of his skateboard, Ipod and Nintendo, there wouldn't be much left.

But children are often covered under the liability insurance policy of their parents and that means an insurance company with deep pockets.

Parent Liable?

Rule #5: Generally, a parent is not liable for the torts of their child.

BB gun warning signTo quote again from Halsbury on the Laws of England:

"Prima facie a parent is not liable for a tort committed by his child.

"Where, however, a child causes injury to others, the parent or any other person in charge of the child may be liable if the parent or other person has control of a dangerous thing which causes the injury or is negligent, either in permitting the child to use a thing which is dangerous ... or in not exercising proper control and supervision of the child."

However, a parent can be vicariously liable if the child's tort occurs during work performed for the parent. In this, the parent is the equivalent to an employer, who are held liable for their employee's torts; what lawyers call vicarious liability.

Most recorded law cases of this nature involve parents that give their child a gun and then fail to supervise its use.

In Paterson, a 10-year old son received a BB gun from his father (a school teacher!). His father was strict about misuse of the gun. But against his father's orders, the child wandered about town with the gun and shot a girl in the eye, rendering the eye virtually useless forever. The father was sued. Justice Sirois of the Saskatchewan Court of Queen's Bench found that the father had not been negligent adding a useful review of the law:

"The rule at common law is that a parent is not because of his family relationship legally responsible to answer in damage for the torts of his infant child; the parent is not liable for the negligence of his child unless the child is his servant or agent.

"A parent, however, is liable for his own negligence and he is under a duty to exercise such control over his children as a prudent person would exercise. Accordingly when a father presented his son, aged 15, with an air gun and the boy broke a window and a few months later shot the plaintiff in the eye, it has held that the father was liable. Similarly where a father allowed his son, aged 12, to possess a .410 shotgun, but did not instruct him on the proper handling of the gun when he was in the presence of others, the father was found to be liable when a child was shot, although he had forbidden his son to use the gun with other children present. On the other hand, a father who allowed his son, aged 13, to have an air rifle on condition he did not use it outside the house, and had a large cellar in which the rifle could be used, was held not liable when, in disobedience of his orders, his son fired the rifle in an alleyway and injured a boy aged five. The precautions taken were suitable and would have been adequate but for the son's disobedience."

Look at the Statute, Baby! The Statute!

In the area of a parent's liability for the torts of their child, statutes are gradually teasing their way in. Very reluctant, traditionally, to interfere with what was perceived as the common law's sensible treatment of the liability of children for their torts, many jurisdictions are now changing that law by statute which, of course, where it conflicts with the common law, has precedence.

For example, the Canadian provinces of British Columbia and Manitoba both have a Parental Responsibility Act. The BC version, circa 2009, says that:

"... if a child intentionally takes, damages or destroys property of another person, a parent of the child is liable for the loss of or damage to the property experienced as a result by an owner and by a person legally entitled to possession of the property."

But the ominous proposal is effectively useless because of several reasons. First, the reference is to intentional torts. Most tort liability occurs due to negligence, not intentional torts. Secondly, the parental liability is limited to $10,000. Thirdly, the parent has a specified defence, but well known to the common law anyway:

"A parent has a defence ... if the parent satisfies the court that he or she was exercising reasonable supervision over the child at the time the child engaged in the activity that caused the property loss, and made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that caused the property loss."

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