The Gazette 1980

GAZETTE

MARCH 1980

include the duty to take reasonable care to prevent

conduct on the part of passengers which is negligent.

In the present case that duty is, it seems to me, rein-

forced 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."

Walsh, J. observed that the steps which the person in

charge of a car should take to protect others from injury

must be determined in the light of the exact circum-

stances of each case:

"In this case the defendant by reason of the fact that

he was the parent of the tortious child could be held

to have had an authority over the child. By reason of

his proximity to the child he could be held to have

been in a position to exercise that authority."

A number of specific aspects of parental liability based

on negligence require consideration.

(0 The Age of the Child

Clearly, where the child is very young, the parents'

responsibilities are high and they will not be permitted to

excuse themselves by having relied on their child to

behave carefully when the child's immaturity and lack of

experience would not warrant that trust. It has been well

observed, however, that:

"I a Is they approach maturity, and as an aid in their

attaining it, adolescents require more freedom, and

hence less supervision, than . . . young children. As a

child grows older there are fewer situations in which

bis 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 uncertain. It would appear that

he age of majority has no magic in this context: parents

m a

y be liable in relation to children of full age but

obviously the scope of liability would normally be more

restricted in such cases than where the child is a minor.

(ii)

Which Parent is Liable?

Somewhat suprisingly the decisions on parental

'ability do not contain a clear analysis of this question.

sually the father alone is sued; sometimes both parents

e defendants; most rarely, the mother alone is sued.

'early, the question of which parent is the proper one to

sue will depend greatly on the facts of the case. If a father

a s

supplied his child with a gun, he is the obvious person

sue

- if a mother lets her child escape onto the roadway

hue she is shopping, it will not usually occur to a driver

J^ho is injured while swerving to avoid the child to sue the

ther who is at the time busy at work in an office many

roues away. It should, however, be possible to argue that,

aving regard to constitutional, statutory and judicial

evelopments in recent years, the father no longer should

regarded as having more responsibilities in this context

n the mother in a case where both parents were

rovolved in the conduct which brought about the

Plaintiffs injury.

COMPARATIVE ASPECTS

is useful to look briefly at the law in other countries

on the subject, since there is a suprising divergence of

approach. Broadly speaking, the other common law

jurisdictions take the same position as in this country.

New Zealand

and the common law provinces of

Canada

are virtually identical with our law. Australia

seems somewhat more indulgent to parents.

The

approach in the United States of America

is also similar

to that of our law, but statutes in forty-five states have

altered the position to a certain extent. Directed at

curbing juvenile delinquency, these statutes impose

liability on parents for damage intentionally inflicted by

their children on persons or property.

Normally the

statutes specify a maximum amount that may be

awarded. A statute in Georgia which contained no

damages ceiling and which imposed liability irrespective

of fault was struck down

on the ground of deprivation of

property without due process of law. The court

distinguished this statute from those involving limited

liability on the basis that the latter should be regarded as

essentially penal rather than compensatory.

It is the civil law system which is of most comparative

interest, since it approaches the question of parental

liability from a different starting-point than that of the

common law. It begins with the general principle that a

person is liable not merely for damage that he himself

causes by his own act but also for damage caused by the

acts of persons for whom he is responsible.

The Civil

Codes of most jurisdictions specifically impose on parents

liability for damage caused by their minor children who

are living with them. Normally parents will be relieved of

liability where they can show that they "could not have

prevented the damage". In effect, if they can establish

that they were not at fault, they will be relieved of liability.

Thus the practical difference between our law and that of

the civil law system is that parents in this country are

presumed

not

to have been at fault unless the contrary is

proved whereas in civil law jurisdictions the

reverse

presumption applies.

Whether it would be desirable for our law to adopt the

civil law approach on this subject is a matter of debate. In

favour of doing so it could be argued that the trend of tort

law is already firmly directed towards extending the range

of liability

and that, if parents are not liable for damage

caused by their children, the victim may frequently go

without compensation since the child (if liable) will not

normally be worth suing. As against this, it has been

argued that vicarious liability should not apply to parents

in the same way as to employers, since:

"employers in fact have greater control over the

behaviour of their employees on the job than do

parents over their children. The employer can select

his employees, discharge them, and prescribe rewards

and punishments to which rational beings will

respond. Children tend to be ungovernable; natural

parents do not choose their children; children cannot

be fired for having been careless. A rule of strict

parental liability would have little regulatory

effect."

One commentator has suggested a more radical

solution:

"iFlrom an historical perspective a child, as a form

of personal property, might be subject to deodand.

Not an unattractive possibility, at least to a

parent."

Footnotes on Page 44

This article is written in a personal capacity.