What happens when a child takes Mum or Dad’s car for a joyride, loses control and crashes into another parked car, premises or person? Can the child’s parents be held responsible for his or her actions?
The High Court has examined the question of liability of minors and the “vicarious” liability of their parents. The Court considered whether a 12 year old boy had the capacity to foresee the consequences of his actions. Specifically, whether the boy realised that he was capable of blinding another by wielding a stick in the playground.
The High Court found that a child may be too young to have the level of foresight required to understand the possible consequences of his actions. A child in these circumstances cannot be held liable in negligence and further, may be deemed to lack the volition required to make his or her conduct actionable in trespass.
The Court adopted the view that in an action for negligence against a child, the child’s age must be considered when deciding whether the child took reasonable care in his or her actions. The applicable test of “reasonable care” comprises both objective and subjective considerations, yet remains fundamentally, ‘a question of fact and degree’. Thus the Courts use a sliding scale of responsibility where children are concerned.
The age of a child should not be taken into consideration when the conduct in question is conduct that only an adult would be expected to engage in, for example, driving a motor vehicle. In such an instance the child should observe the same standard of care as a ‘competent, qualified and experienced driver’. Such a standard was ‘the standard of care upon which other road users are entitled to rely’, for other road users ‘are not to know that the driver is under age, incompetent, unqualified and inexperienced’.
At common law, the general principle is that a minor cannot be held liable in tort for his or her actions in the absence of any statutory provision to the contrary. By extension, parents are not generally held to be vicariously liable for the actions of their children.
In seeking to bring an action against a parent for the wrongful conduct of their child, it is necessary to establish “negligence” on the part of the parent. For example, the failure of a parent to remove car keys from the child. In the absence of vicarious liability, it is necessary to establish direct liability for the injury on the part of the adult.
On the question of the common law duty owed by parents to take reasonable care to prevent their children from causing injury to others, an action for negligence on the part of the parent may be instituted without regard to the nature of the child’s conduct or consideration of whether the said conduct was wrongful.
The standard of care owed by a parent in preventing their child from causing harm or injury to others is that of the reasonable person in the position of the parent. An interesting contrast to the standard applied to children!
In adjudging parental liability, the court will consider existing community standards, the characteristics of the person at risk of injury, the practicalities of the factual situation before the Court, the foreseeability of the particular risk and will weigh the risk to others against the difficulties faced in seeking to prevent the danger. Thus, the question of liability on the part of the child and/or parent will be determined by reference to the distinct set of circumstances which characterise the given situation.
If you have any questions about personal injury claims, negligence claims or any other legal matters, speak to our personal injury lawyers in Perth today.