Liability in tort

Contributed by Anna Copeland, Alexa Morcombe, Stephen Walker and Judith Kenny and current to 1 September 2005

CHILDREN’S LIABILITY

Children are generally liable for the consequences of their wrongful acts.

However, the degree of reasonable care required of them depends upon the standard normally expected of a child of the particular age of the child concerned.

The defence of infancy may be relevant in the case of a very young child in a negligence action, or where a particular state of mind such as ‘malice’ is required. A young child may be aware of what he or she is doing and may know that the action is wrong, but still be incapable of foreseeing its consequences. In such a case there may be no liability in negligence.

The capacity of a child is a question of fact to be considered and decided in each case.

Obviously, the closer a child is to the age of majority, the more the standard of care resembles that required of an adult. Where a child engages in an adult activity such as driving a car or handling a gun, he or she is generally expected to conform to a standard of care applicable to an adult.

PARENTS’ LIABILITY

Normally parents are not liable for acts committed by their children. However, they may be liable if the child was acting as the parent’s agent, with his or her authority, or where it is found that a parent has not exercised proper control or supervision over the child which has resulted in the child injuring another person or another person’s property. Naturally, the circumstances will differ in each case.

If a child is known by its parents to have vicious or uncontrollable tendencies, the parents have a much stricter responsibility to control the child.