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Table of contents
- BU-trained scholar says uninformed prejudice abounds
- Subscribe to our mailing list
- The Walt Whitman Archive
- Remarks, by Bill Nye.
This has generally been considered to be the position by the commentators, but the authorities are sparse. In Waters v O'Keeffe , 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.
BU-trained scholar says uninformed prejudice abounds
Moon v Towers 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. This would suggest some doubt as to the question of the principle of liability based on ratification but another statement by the Chief Justice appears to assume that liability could attach on such a basis.
Williams, J. A parent may be vicariously liable for the torts committed by his child where a master-servant 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. The infant sued her grandmother, claiming that she was vicariously responsible for the negligence of her daughter, the infant's aunt.
The trial judge, Gannon, J. Walsh, J. The nature and limits of this hospitality were completely under the control of the defendant, and to that extent it may be said that her daughter As the defendant was the person providing the hospitality, the delegation of some of that task to her daughter It was within the control of the defendant to decide when the tea would be served and where it would be served and, indeed, if it was to be served at all.
It was also within the control of the defendant to decide how it was to be served. The position would be no different, therefore, from that of a case where the head of a household had requested a neighbour to come in and assist in the giving of a dinner-party because she had not any, or not sufficient, hired domestic help. In my view, in the latter case the person requested to assist in the service, but who was not hired for that purpose, is in the de facto service of the person who makes the request and for whom the duty is being performed. A further passage of Walsh, J.
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For example, in the present case if the defendant had requested or permitted her daughter It may well be, as has been suggested by one noted writer, that the fact that this imposition of vicarious liability has apparently been confined to motor-car cases is because it was developed as a means of reaching the insurance company of the owner of the car. Whatever may be the reasons for the development of the doctrine in a particular area, the reasons cannot mask the basic principle of law involved. Moynihan v Moynihan would appear to be of some significance in relation to the liability of parents for the torts of their children.
A parent may be negligent in affording his child an opportunity of injuring another. 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.
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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. 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. The ground of liability here is not that the boy was the defendant's son, but the fact that the gun was left without warning, in a dangerous condition, within reach of persons using the pathway, and the boy was one of the very class of persons whom the defendant knew to be not only likely but certain to pass by, viz. 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 Newton , liability was imposed on the father of a twelve-year-old boy who allowed his son to own a. 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 , 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 Codd 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. In Bebee v Sales , 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.
It would appear that liability relating to use of guns by children may also arise under the Firearms Act The second basis of negligence on the part of a parent may arise where a parent, who knows or ought to know 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 previously or has displayed a tendency to steal or to set fire to property or drive dangerously , 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. 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. In Curley v Mannion , in , 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 year-old daughter of the driver opened a door in the path of a cyclist. In the present case that duty is, it seems to me, reinforced by the relationship of parent and child; and a parent, while not liable for the torts of his child, may be liable if negligent in failing to exercise his control to prevent his child injuring others. By reason of his proximity to the child he could be held to have been in a position to exercise that authority.
In the English decision of Carmarthenshire County Council v Lewis , 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. In discussing the question of the duty to be imposed on the defendant, Lord Reid stated:. I do not think so. There is no absolute duty; there is only a duty not to be negligent, and a mother is not negligent unless she fails to do something which a prudent or reasonable mother in her position would have been able to do and would have done.
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Even a housewife who has young children cannot be in two places at once and no one would suggest that she must neglect her other duties, or that a young child must always be kept cooped up 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 , 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. 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. As a child grows older there are fewer situations in which his parents have the ability to control him. Concomitantly, as he grows older there should be fewer situations in which they have a legal obligation to do so. 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. 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.
Section 99 1 of the Children Act provides that. A number of questions regarding the section may be mentioned briefly.
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. 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. 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.
Let us consider possible avenues for reform. 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. 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.
Remarks, by Bill Nye.
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. Children mature at widely differing times. At certain stages of their development children show marked distinctions in their mental development. 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.