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GAZETTE
JANUARY FEBRUARY 1980
A Minor Confusion: Children
and the Law of Negligence
WILLIAM BINCHY*
The position of children regarding negligence and contri-
butory negligence is a matter of considerable practical
importance but has been discussed only rarely in Irish legal
periodicals. The present article attempts to set out the main
features of the law.
Contributory Negligence
1
It is best to begin with a consideration of contributory
negligence, since this aspect of the subject has given rise to
considerable judicial analysis, in contrast to negligence
where the cases are very scanty. The reason for this differ-
ence is relatively easy to determine: whilst it is in the nature
of children to get into situations of danger, frequently
resulting in injuries to themselves, it is less frequent that a
person injured by a child will contemplate suing the child,
2
who normally will have no assets.
The classic statement of the relevant legal principles
regarding the contributory negligence of children was
made by O'Byrne, J., in
Fleming v Kerry County Council:
3
"In the case of a child of tender years there must
be some age up to which the child cannot be guilty of
contributory negligence. In other words, there is
some age up to which a child cannot be expected to
take any precautions for his own safety. In cases
where contributory negligence is alleged against a
child, it is the duty of the trial Judge to rule, in each
particular case, whether the plaintiff, having regard
to his age and mental development, may properly be
expected to take some precautions for his own safety
and consequently be capable of being guilty of contri-
butory negligence. Having ruled in the affirmative, it
becomes a question of fact for the jury, on the
evidence, to determine whether he has fallen short of
the standard which might reasonably be expected
from him having regard to his age and development.
In the case of an ordinary adult person the standard
is what should be expected from a reasonable person.
In the case of a child, the standard is what may
reasonably be expected, having regard to the age and
mental development of the child and the other
circumstances of the case."
A number of aspects of this statement of the law require
further consideration.
(a) 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 Ireland:*
" . . . the doctrine of contributory negligence is
entirely grounded upon the fact that man is a reas-
oning animal, and has no application to the case of a
child of such an age as to be incapable of appreci-
ating the danger, and reasoning in reference to it, any
more than if he had been a brute animal."
Manifestly, it would be nonsense to speak of a six-month-
old infant as being capable of being guilty of contributory
negligence. But the point at which a child may become so
has given rise to some uncertainty.
The age of 3 years appears to be the youngest at which
the Courts have seriously canvassed the possibility of a
child having the requisite capacity. In
Macken
v
Devine,
s
Gleeson, J., in the Circuit Court, held that a 3-j-year-old
plaintiff who had fallen down unguarded steps was not
guilty of contributory negligence since he "had not
sufficient sense to understand the risk and was incapable of
appreciating the danger". In the Canadian decision of
Kaplan v Canada Sqfeway Ltd
.,
6
Disbery, J., of the
Saskatchewan Queen's Bench, expressed the opinion that
it would be "absurd" to regard a child of that age as being
capable of contributory negligence. In the old English
decision of
Gardner v Grace,
1
where the plaintiff was 3f-
years-old, Channell, B., stated that "the doctrine of contri-
butory negligence does not apply to an infant of tender
age". Cases in the United States of America
8
are also over-
whelmingly opposed to holding 3-year-olds capable of
contributory negligence.
As the child moves towards 4
9
and 5
10
the Courts
become increasingly doubtful that he is incapable of contri-
butory negligence. By the time he reaches 6, he is likely to
be held to have the requisite capacity, at all events where he
is a bright child.
11
Cases have been reported,
12
however,
where the Courts have held children above this age
incapable of contributory negligence.
The Irish authorities are strongly of the view that 9-year-
olds are capable of contributory negligence. In
Behan
v
Thornhill
,
13
the Supreme Court upheld the verdict of
Davitt, P., dismissing an action for negligence brought by a
9-year-old plaintiff arising out of a collision with the defen-
dant's car. The plaintiff was undoubtedly a bright child —
Davitt, P., stated that he had "seldom seen a brighter boy
in the witness box" — but the case did not proceed on this
finding alone. Davitt, P., stated:
" . . . I think that a boy of 9 years is capable of contri-
butory negligence. It has been held in some cases that
younger boys could not be capable of contributory
negligence, but I am satisfied that a boy of 9 years
can be capable of contributory negligence."
Similarly, in
Courtney v Masterson
,
14
Black, J., in the High
Court, stated that he was
"not prepared to accept the contention that a boy of
10 years is incapable of contributory negligence."
Whilst the Courts have tended to ask whether children
of a
certain age
may be regarded as having the capacity for
contributory negligence, it is clear that this is not the best
approach and that it is not in harmony with the statement