The Gazette 1980

GAZETTE

APRIL 1980

Liability in Tort of Parents for Damage

Caused by their Children

William Binchy

INTRODUCTION

The liability of parents for damage caused by their

children is a matter of some practical concern for many

solicitors. Frequently, of course, parents admit their

moral responsibility for the misdeeds of their offspring

and pay without protest for a broken window or a broken

nose. But are they legally obliged to do so? The present

article examines this question.

THE GENERAL PRINCIPLE

The general principle is that parents are not, as such,

liable for the torts of their children.

Moon v. Towers,

Willes, J. stated that he was

"not aware of any such relation between a father and

son, though the son be living with his father as a

member of his family, as will make the acts of the son

more binding upon the father than the acts of any

body elsé."

A number of important exceptions, however, limit the

scope of this rule. These will be considered in turn.

EXCEPTIONS

I • Where the Parent has Directed, Authorised or Ratified

the Act of the Child

"It seems clear that if the parent has directed, or

consented to, or ratified, the child's acts which cause

the damage, the plaintiff will be able to recover

damages from the parent as an independent

tortfeasor:

qui facit per alium facit per

se."

This has generally been considered to be the position

y the commentators,

but the decided cases are few. In

Wat

ers

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 while he was

climbing on it. The defendants were held not liable for his

injuries since their children had acted without their

authority.

The leading English decision is

Moon

Towers.

There, the Court held that there was no evidence of ratifi-

cation on the facts of the case. The judges expressed some

doubt, however, as to whether the parent would have

been liable if ratification had been found.

- Where the Parent is Vicariously Liable for the Child's

Tort

A parent may be vicariously liable for a tort committed

by his child where a master-servant relationship exists

between them.

Liability may arise not only where there is

an express contractual relationship (as, for example,

where a dentist employs his daughter as a receptionist),

but also where no formal contractual relationship exists

between them. In many common law jurisdictions,

children driving cars owned by their parents have been

regarded by the courts as being in a service or agency

relationship, so that liability may be imposed on the

Parents in relation to the children's negligence.

These

decisions were generally regarded as being

sui generis

involving a device to enable injured persons to recover

compensation from insurance companies.

The decision

of the Supreme Court in

Moynihan

1975, however, adopted a broader approach.

The facts briefly were that a two-year-old infant, when

visiting her grandmother's home, was scalded by a teapot

as a result of the alleged negligence of her aunt (the grand-

mother's daughter), who was living in the grandmother's

home at the time of the accident. The infant sued her

grandmother,

claiming that she was vicariously liable

for her daughter's negligence. The trial judge, Gannon, J.,

withdrew the case from the jury, but the Supreme Court

reversed.

Walsh, J., who delivered the majority judgment (with

which O'Higgins, C.J. concurred) based liability on the

hospitality extended to the plaintiff by her grandmother:

"The negligence attributed to [the aunt] was not the

casual negligence of a fellow guest but may be

regarded as the negligence of a person engaged in one

of the duties of the household of her mother, the

defendant, whose duties were being carried out in the

course of the hospitality being extended by the

defendant. 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

. . . in her actions on this occasion was standing in

the shoes of the defendant and was carrying out for

the defendant a task which would primarily have

been that of the defendant, but which was in their

case assigned to Iher daughter]. As the defendant was

the person providing the hospitality, the delegation of

some of that task to her daughter . . . may be

regarded as a casual delegation. [The daughter's]

performance of it was a gratuitous service for her

mother. 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."

In an important passage in the present context, Walsh,

J. stressed that:

"[t]his power of control was not in any way

dependent upon the relationship of mother and

daughter but upon the relationship of the head of a

household with a person to whom some of the duties

of the head of the household had been delegated by

that head. 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. It

would produce a strange situation if in such a case

the 'inviter' should be vicariously liable for the hired

domestic help who negligently poured hot sauce over

the head of a guest but should not be equally liable for

similar negligence on the part of the co-helper who

was a neighbour and who had not been hired. In my

view, in the latter case the person requested to assist

in the service, but who was not hired for that