The Gazette 1980

GAZETTE

JANUARY-FEBRUARY 1980

of O'Byrne, J., in

Fleming

Kerry County Council,

already quoted. As anyone who has had any experience of

dealing with young children will appreciate, children

develop at different speeds: one 6-year-old may be fully

aware of the dangers of a particular situation whilst his

friend of the same age may have no such appreciation. This

subjective element is recognised where the child has been

found to be capable of contributory negligence: it should

also be stressed, as O'Byrne, J., has done, where the

threshold issue of capacity for contributory negligence is

being determined.

(b) Standard to be Applied in Determining whether a

Child was Guilty of Contributory Negligence

There is a surprising degree of confusion in this country

as to the standard to be applied to a child, admittedly

capable of contributory negligence, in determining whether

he was, in the circumstances of the case, guilty of contri-

butory negligence. O'Byrne, J., in

Fleming vKerry County

Council,

favoured the subjective approach: the standard

was

"what may reasonably be expected, having regard to

the age and mental development of the child and the

other circumstances of the case."

Yet, in the subsequent Supreme Court decision of

Duffy

Fahy

Lavery, J., expressed uncertainty as to the

meaning of O'Byrne, J.'s, statement, considering it to be

"susceptible of meaning either the mental develop-

ment of the individual concerned or the mental

development of the normal or average child of that

age.

He regarded it as "unnecessary to consider the matter

further or to express an opinion thereon".

' In

Kingston v

Kingston,

Walsh, J., favoured the objective approach,

looking only to the age, and not the mental development, of

the child.

Other decisions over the years have been divided on this

matter: some

have clearly endorsed the subjective

approach, but others

have professed to favour the

objective standard.

The most recent decision in which the matter was

discussed by the supreme Court is

McNamara v Electricity

Supply Board.

The case is, of course, a leading one on the

subject of occupiers' liability, but in the present context it is

the treatment of the plaintiff's contributory negligence that

is relevant. It will be recalled that the plaintiff, an 11-year-

old boy, was injured when climbing on the defendant's

electricity sub-station. He had been warned by his father

not to go there. He was aware of the existence of a number

of notices around the sub-station 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

guilty of any contributory negligence and the defendant

appealed against this finding (among others).

The standard of care appropriate to the plaintiff was

discussed in a number of the judgments delivered in the

Supreme Court. Mr. Justice Walsh stated that

'"the test to be applied is that stated by O'Byme, J., in

Fleming v. Kerry County Council,

which is that it is

for the jury to determine whether the boy fell short of

the standard which might be reasonably expected

from him having regard to his age and

his

development."

In this passage and in the passage following afterwards in

his judgment,

Mr. Justice Walsh appears clearly to

favour the subjective standard (whilst considering that, on

the facts of the case, a more objective standard (of age and

experience, but not mental development) would have

yielded the same result).

Mr. Justice Henchy considered that the relevant

standard was that

"to be expected from a boy aged 11 years of the

plaintiff's education and general background . . ."

Mr. Justice Griffin did not refer to the standard in express

terms but he appears to have favoured the subjective

approach to the extent that he considered

the

plaintiff's

capacity to read — rather than that of the ordinary 11-year-

old — to be of major significance.

Mr. Justice Budd concurred

with the judgment of Mr.

Justice Walsh. The brief treatment of the issue by

FitzGerald, C J ., does not indicate a clear leaning towards

either the objective or subjective approach.

The better view would appear to be that

McNamara

represents a clear preference on the part of the Supreme

Court for the subjective approach. This approach is also

favoured by the Courts in Canada

and the United

States.

In England

and Australia

the position is less

clear, but the objective approach appears to command

support.

Negligence

As has been mentioned, there have been very few

decisions on the question of the negligence of children.

There have been statements

to the effect that minority

will not afford a defence to an action for negligence, but the

better view

appears to be that the negligence of a child

should be judged by the same standard as that regarding

his contributory negligence.

Children Performing Adult Activities

Reference should be made to a development in the law in

a number of countries overseas — including the United

States of America,

Canada,

Australia

and New

Zealand

— which has not so far taken place in Irish law.

Courts in these countries have imposed the adult standard

of negligence on children performing adult activities, such

as driving a car.

In the leading decision on the subject,

Dellwo v

Pearson,

where the defendant, a 12-year-old boy, injured

the plaintiff operating a power boat, Loevinger, J., of the

Minnesota Supreme Court argued that

"while minors are entitled to be judged by standards

commensurate with age, experience, and wisdom

when engaged in activities appropriate to their age,

experience and wisdom, it would be unfair to the

public to permit a minor in the operation of a motor

vehicle to observe any other standards of care and

conduct than those expected of all others . . . One

cannot know whether the operator of an approaching

automobile, airplane, or power boat is a minor or an

adult, and usually cannot protect himself against

youthful imprudence even if warned."

This concentration on the expectations of the victim, rather

than the responsibility of the child, may be regarded by

many as inappropriate. The doctrine of "adult activities"

has been carried to ludicrous lengths in the United States of

America, the Courts holding that skiing

and even golf